FREEDOM OF EXPRESSION AND THE RIGHT
TO REPUTATION: HUMAN RIGHTS IN
CONFLICT∗
STIJN SMET∗∗
INTRODUCTION ........................................................................... 184 I. A MODEL FOR THE RESOLUTION OF CONFLICTS
BETWEEN HUMAN RIGHTS................................................. 187 II. THE LEGAL REASONING OF THE EUROPEAN COURT
OF HUMAN RIGHTS .............................................................. 192 A. THE LEGAL REASONING OF THE COURT UNDER ARTICLE 10
OF THR ECHR....................................................................... 198 1. The Impact Criterion ....................................................... 202 a. Nature and Severity of the Penalty ............................ 202 b. Status of the Plaintiff ................................................. 205 c. Content, Tone, and Form of the Statement ................ 207 d. Statements of Fact versus Value Judgments.............. 214 2. The Core/Periphery Criterion .......................................... 217 3. The Additional Rights Criterion ...................................... 220 4. The General Interest Criterion ......................................... 221 ∗ I am indebted to Eva Brems and Alexandra Timmer for crucial comments
on an earlier draft of this article and to the editorial staff at the American
University International Law Review for the constructive observations made
during the editing process. All comments led to significant improvements in the
quality of this article. Any mistakes and shortcomings remaining in the article are
no one’s but my own. I am also immensely honored by and deeply appreciate the
award of honorable mention granted to an earlier version of this paper by the
Honor Jury of the Human Rights Essay Award 2010, “The Right to Freedom of
Expression and International Human Rights Law,” organized by the Academy on
Human Rights and Humanitarian Law.
∗∗ Stijn Smet (°1982) holds a Master in Law, a European Master’s Degree in
Human Rights and Democratization, and is currently enrolled as a Ph.D. candidate
at the Human Rights Centre of Ghent University, working on his Ph.D.: “Conflicts
between Human Rights in the Jurisprudence of the European Court of Human
Rights.” He can be reached by e-mail at [email protected].
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5. The Purpose Criterion...................................................... 227 6. The Responsibility Criterion ........................................... 228 B. THE LEGAL REASONING OF THE COURT UNDER ARTICLE 8
OF THE ECHR ....................................................................... 232 CONCLUSION ............................................................................... 235 INTRODUCTION
Based on fundamental values of freedom and equality, human
rights represent a constitutive element of any democratic society. In
their original conception, human rights are granted to every
individual as—to use Ronald Dworkin’s metaphor—trumps over
state interests.1 They are designed to protect the individual from
unwarranted interferences in crucial aspects of her life. Only in
specific circumstances, when strict requirements of necessity and
proportionality are met, can a state limit human rights to protect, for
instance, public order or national security.2 Different concerns
manifest when parties to a horizontal conflict3 invoke a human right
to protect their interests. In such situations, where two human rights
conflict with one another, the principle of the indivisibility of human
1. See Ronald Dworkin, Rights as Trumps, in THEORIES OF RIGHTS 152, 15367 (Jeremy Waldron ed., 1984) (arguing that rights have priority over
considerations of utility).
2. See, e.g., Universal Declaration of Human Rights, G.A. Res. 217 (III) A,
art. 29(2), U.N. Doc. A/RES/217(III) (Dec. 10, 1948) (“[E]veryone shall be subject
only to such limitations as are determined by law solely for the purpose of securing
due recognition and respect for the rights and freedoms of others and of meeting
the just requirements of morality, public order and the general welfare in a
democratic society.”); Convention for the Protection of Human Rights and
Fundamental Freedoms, art. 9, Nov. 4, 1950, 213 U.N.T.S. 222 [hereinafter
European Convention on Human Rights].
(1) Everyone has the right to freedom of thought, conscience and religion; . . . (2)
Freedom to manifest one’s religion or beliefs shall be subject only to such limitations
as are prescribed by law and are necessary in a democratic society in the interests of
public safety, for the protection of public order, health or morals, or for the protection
of the rights and freedoms of others.
Id.
3. In this context, a horizontal conflict—one between individuals—is
distinguished from a vertical conflict—one between an individual and the State.
While the latter pits a human right against a State interest, the former involves the
opposition of two human rights.
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rights requires that both rights carry equal weight.4 Neither right can
be used as a trump over the other and alternative means must be
employed to resolve the conflict.
When a conflict between human rights reaches a court, the matter
necessarily involves a claim that the plaintiff’s rights have been
violated. The defendant’s human rights will normally come before
the court in an indirect manner—as part of her defense. The court
will consequently be tempted to address the issue from the
perspective of the directly invoked right. This is particularly true at
the European Court of Human Rights (“ECtHR”), since the counterparty to a claim at the Court is always the government of the
contracting State in question. This is also the case when the original
conflict in domestic proceedings was one between two individuals.
At the international level, a formerly horizontal conflict will have
transformed, as it were, to a vertical one between the applicant and
the State. The other individual—the domestic defendant whose
human rights are also at stake—disappears to the background. The
resulting approach, in which the Court addresses only the right
invoked by the applicant and disregards to a lesser or greater extent
the other right(s) involved, will be referred to as “preferential
framing.” Preferential framing is problematic since it can lead to an
unsatisfactory resolution of the conflict whereby an overemphasis on
the right invoked causes the Court to decide the conflict in favor of
that right to the detriment of the other neglected right. This disparity
points us toward two basic requirements for building a constructive
approach to conflicts between human rights, namely the correct
identification of the conflict by the Court, followed by its resolution
through transparent and coherent reasoning that avoids considering
one party’s rights to the exclusion of the other’s.
From this angle, this work will examine the conflict between
4. See World Conference on Human Rights, June 14-25, 1993, Vienna
Declaration and Programme of Action, ¶ 5, U.N. Doc. A/CONF.157/23 (July 12,
1993) (“All human rights are universal, indivisible, and interdependent and
interrelated.”); Eva Brems, Conflicting Human Rights: An Exploration in the
Context of the Right to a Fair Trial int eh European Convention for the Protection
of Human Rights and Fundamental Freedoms, 27 HUM. RTS. Q. 294, 303 (2005)
(noting that some scholars have attempted to hierarchically list core rights, but that
no consensus exists on the subject, and therefore “it seems impossible to determine
priority rules for conflicting human rights in the abstract”).
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freedom of expression and the right to reputation. Building on
previous research,5 it will analyze the legal reasoning of the ECtHR
with regard to the conflict between those human rights. While
previous research on conflicts between human rights has been largely
limited to narrow selections of case law,6 this paper will take a more
systematic approach—presenting a comprehensive study of one
particular conflict through extensive, if not exhaustive, analysis of
ECtHR case law.7
Although other authors have discerned certain lines of reasoning
employed by the ECtHR with regard to conflicts between human
rights, the Court has yet to develop a general doctrine for the
resolution of such conflicts.8 The research conducted for this paper
5. See, e.g., CONFLICTS BETWEEN FUNDAMENTAL RIGHTS (Eva Brems ed.,
2008) (including a collection of papers presented by human rights scholars at the
International Conference on Conflicts Between Fundamental Rights in Belgium in
2006); Eric Barendt, Balancing Freedom of Expression and Privacy: The
Jurisprudence of the Strasbourg Court, 1 J. MEDIA L. 49 (2009) (analyzing the
decisions of the European Court of Human Rights that balanced privacy rights and
the rights to life and reputation with the freedom of expression); Dan Kozlowski,
“For the Protection of the Reputation or Rights of Others:” The European Court
of Human Rights’ Interpretation of the Defamation Exception in Article 10(2), 11
COMM. L. & POL’Y 133, 133 (2006) (evaluating the European Court of Human
Rights’ defamation jurisprudence which has “developed a hierarchy of protected
expression that leaves other expression vulnerable to restriction”); Gavin Millar,
Whither the Spirit of Lingens?, 3 EUR. HUM. RTS. L. REV. 277 (2009) (charting the
shift in the Strasbourg jurisprudence from stringently protecting free speech to
permitting more restrictions on speech, especially in privacy cases). See generally
Janneke H. Gerards, Conflicterende rechten, in EUROPEES VERDRAG VOOR DE
RECHTEN VAN DE MENS, RECHTSPRAAK & COMMENTAAR [EUROPEAN
CONVENTION ON HUMAN RIGHTS, JURISPRUDENCE & COMMENTARY] 1 (Janneke
H. Gerards et al. eds., 2009).
6. A notable exception, offering an excellent in-depth analysis of the
jurisprudence of the European Court of Human Rights on conflicts between
fundamental rights, as well as proposing an alternative approach to such conflicts,
is Peggy Ducoulombier, Les Conflits de Droits Fondamentaux devant la Cour
Européenne des Droits de l’Homme [Fundamental Rights Conflicts Before the
European Court of Human Rights] 351-69 (Nov. 13, 2008) (unpublished Ph.D.
dissertation, Université Strasbourg) (on file with the American University
International Law Review)
7. A total of 125 judgments and admissibility decisions of the European Court
of Human Rights have been analyzed for the purpose of this paper. This analysis of
the Court’s jurisprudence is up to date until January 2010.
8. See Gerards, supra note 5, at 1 (concluding that while the Court introduced
a tentative theoretical approach to conflicts between human rights in Chassagnou
v. France, App. Nos. 25088/94, 28331/95, & 28443/95 (Eur. Ct. H.R. Apr. 29,
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revealed that in cases involving a conflict between freedom of
expression and the right to reputation, the Court’s legal reasoning
suffers from a lack of clarity, consistency, and transparency. To
address these issues, the paper will first present a theoretical model
that could be an invaluable tool for the development of transparent
and coherent reasoning in these cases. This article applies this model
to the Court’s defamation case law, and offers concrete insights into
how the model might assist in improving the Court’s legal reasoning.
However, because the scope of the research is limited to the specific
conflict between freedom of expression and the right to reputation,
any conclusions drawn as to the practicability of the model will be
limited to that specific conflict. Whether or not the model can also be
used for the resolution of other conflicts between human rights will
need to be examined in further research.
I. A MODEL FOR THE RESOLUTION OF
CONFLICTS BETWEEN HUMAN RIGHTS
The model presented in this paper is the result of previous research
and is in the process of being developed.9 The model was originally
launched by Eva Brems,10 but has already been slightly adapted for
the purposes of this paper. The research conducted in preparation for
this and other works support the further examination of the model’s
practicality, with an eye toward either improving it or developing an
alternative model. The current paper thus also serves as a testing
ground for the model.
1999) (HUDOC Database), available at http://cmiskp.echr.coe.int/tkp197/search
.asp?skin=hudoc-en, it has not applied this theory in its subsequent case law);
Ducoulombier, supra note 6 (noting the peculiar nature of conflicts between rights
and the Court’s complex and varied approaches to their resolution).
9. For its latest application, see Eva Brems et al., Les droits fondamentaux
conflictuels [Conflicting Fundamental Rights], in LES DROITS CONSTITUTIONNELS
EN BELGIQUE—LES ENSEIGNEMENTS JURISPRUDENTIELS DE LA COUR
CONSTITUTIONNELLE, DU CONSEIL D’ETAT ET DE LA COUR DE CASSATION
[CONSTITUTIONAL RIGHTS IN BELGIUM—THE JURISPRUDENTIAL TEACHINGS OF
THE CONSTITUTIONAL COURT, THE COUNCIL OF STATE, AND THE COURT OF
CASSATION] (Marc Verdussen & Nicolas Bonbled eds., forthcoming Spring 2011).
10. See Eva Brems, Introduction to CONFLICTS BETWEEN FUNDAMENTAL
RIGHTS, supra note 5, at 1, 4-6 (referencing lines of reasoning that may be useful
for developing a “polyvalent” model for legislators and judges dealing with
conflicting human rights: eliminating fake conflicts, preferring compromise, and
developing criteria and modalities for prioritizing rights).
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Under the proposed model for the resolution of conflicts between
human rights, three possibilities can be distinguished. First, the
conflict before the Court might not be genuine one, but a so-called
“fake conflict.” This is the case where the prima facie conflict is
merely the result of the manner in which it is presented, and an
alternative approach to the conflict would allow for a solution that
leaves both human rights completely intact. A classic example of a
fake conflict—as presented by Brems—is the situation in which
procedural limits are imposed on the accused during a criminal trial,
but not on the prosecutor, in order to guarantee the delivery of a
judgment within a reasonable time.11 In this situation, an apparent
conflict arises between the right to equality of arms and the right to a
trial within a reasonable time, which are both elements of the right to
a fair trial as recognized in Article 6 of the European Convention on
Human Rights.12 However, in Wynen v. Belgium, the ECtHR defused
the conflict by holding that the reasonable time objective should be
realized without impinging on the equality of arms.13 Hence, both
human rights were left intact and the situation was defused as a fake
conflict. Naturally, wherever possible, this is the preferred solution to
“conflicts” between human rights.
In most situations, however, the Court will be confronted with a
genuine conflict rendering the above solution impossible. In such
cases, a course of action that upholds both human rights to the extent
possible should be preferred over a situation in which one right is
sacrificed for the sake of the other. In this context, several authors
have identified the possible value of the doctrine of Praktische
Konkordanz, developed by the German Constitutional Court
(Bundesverfassungsgericht) for the resolution of conflicts between
human rights.14 This doctrine involves a judicial search for a
11. Id. at 4.
12. Compare European Convention on Human Rights, supra note 2, art. 6(1)
(“everyone is entitled to a fair and public hearing within a reasonable time”), with
id. art. 6(3)(b) (“[e]veryone charged with a criminal offense has [the right to]
adequate time and facilities for the preparation of his defence”).
13. See 2002-VIII Eur. Ct. H.R. 217, 231-32 (holding that, while the Court is
sensitive to the need to ensure that proceedings are not prolonged unnecessarily,
the principle of equality of arms does not prevent the achievement of such an
objective, provided that one party is not placed at a clear disadvantage).
14. See Brems, supra note 10, at 4 (singling out the German Constitutional
Court for its development of a general approach to solving conflicts of rights rather
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compromise in which both human rights give way to each other and
a solution is reached that keeps both rights intact to the greatest
extent possible.15
Yet, in the majority of cases, a compromise solution will not be
achievable and the Court will need to undertake the difficult exercise
of determining which right deserves preference over the other. In that
respect the model offers guidance by presenting several criteria
under which the human rights in question can be “weighed” against
each other, taking all the circumstances of the specific case into
account.
The first criterion is the impact, or the seriousness, of the
infringement. This “impact criterion” could be used to determine the
extent to which both rights would be impaired by allowing the
opposing right to take preference. The logic behind this criterion is
the following: Presume a conflict arises between two individuals.
Individual A invokes right X and claims his right should prevail,
while individual B does the same, invoking right Y. If the exercise of
right X by A would lead to a serious impairment of right Y of B,
while the exercise of right Y by B would have only minor
consequences for right X of A, protection of right Y could be more
advisable.
A second criterion is that of the core/periphery. In applying the
“core/periphery criterion,” the Court could determine whether the
aspects of the rights that enter into conflict belong to the core or the
periphery of the human right in question. Using the above example,
the rationale is that where a conflict arises between a core aspect of
right X and a periphery aspect of right Y, right X would16 deserve
than the more common ad hoc approach taken by many other courts and
legislatures).
15. See Olivier De Schutter & Françoise Tulkens, Rights in Conflict: The
European Court of Human Rights as a Pragmatic Institution, in CONFLICTS
BETWEEN FUNDAMENTAL RIGHTS, supra note 5, at 203 (clarifying that “Praktische
Konkordanz,” or “practical concordance,” achieves a compromise between
conflicting rights by “optimizing” each right against the other).
16. Unlike under the third and fourth criterion, the stronger assertion “would”
is used instead of the weaker “could” to indicate that the core of a human right
should receive strong protection over peripheral aspects of other rights. Allowing
infringement of the core of a right in order to protect the peripheral aspect of
another right would rob the former right of its very essence, which should arguably
receive (near) absolute protection. See, e.g., B. v. The United Kingdom, App. No.
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more protection.
A third criterion is the involvement of additional rights. When the
conflict is not limited to two human rights, but also involves other
rights, the “additional rights criterion” could be used to assess the
strength of both parties’ positions, taking into account the additional
rights involved. Suppose the conflict between A and B is not limited
to rights X and Y. Suppose that the exercise of right X by A would
not only affect right Y of B, but would also negatively impact right
Z, also belonging to B. In that case, B’s legal position could be
strengthened by the involvement of right Z.17
A fourth criterion is the close involvement of a general interest,
which could strengthen the position of one of the human rights in the
conflict. The “general interest criterion” could work as follows: If the
exercise by A of right X would not only impair right Y of B, but
would also have negative effects for a general interest, while the
same would not hold true for the exercise of right Y by B, then
protection of right Y could prove to be more prudent.18
A fifth criterion is the “purpose criterion.” This criterion can be
used when a right is exercised in a manner contrary to the very aim it
is designed to achieve. In those circumstances, that right is to be
accorded lesser weight. In our example this would be the case if the
exercise of right X by A is specifically linked to the exercise of right
Y by B in that they both serve the same purpose of protecting an
interest of B. This criterion can for instance be applied in the context
of a conflict between the right to education of a child and the right of
parents to freely choose the education of their children. When the
36536/02, ¶ 34 (Eur. Ct. H.R. Sept. 13, 2005) (HUDOC Database), available at
http://cmiskp.echr.coe.int/tkp197/search.asp?skin=hudoc-en
(holding
that
limitations on the right to marry “must not restrict or reduce the right in such a way
or to such an extent that the very essence of the right is impaired”); A. v. The
United Kingdom, App. No. 35373/97, ¶ 74 (Eur. Ct. H.R Dec. 17, 2002) (holding
that limitations on the right of access to court cannot “restrict or reduce the access
left to the individual in such a way or to such an extent that the very essence of the
right is impaired”).
17. Whether or not such a conclusion is justified will depend on the particular
circumstances of the case. It is well possible that protection of right X of A will
remain more important than protection of rights Y and Z of B.
18. A remark similar to the one mentioned in footnote 17 is made here. The
involvement of a general interest can by itself not determine the outcome of the
case. It is well possible that right X would also prevail over the general interest.
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exercise of the parental rights would undermine the child’s right to
education, the application of the purpose criterion would lead to
Court protection of the child’s right because the parental rights are
closely linked to—and a condition for—the fulfillment of the child’s
right.19
A sixth and final useful element of the model is the “responsibility
criterion.” This criterion, based on a criterion suggested by Olivier
De Schutter,20 implies that a person choosing to exercise her right
bears the responsibility for the manner in which she chooses to
exercise it. This criterion does not call for a direct comparison
between rights, but instead offers flexibility to determine whether
one right has been exercised responsibly. In that sense, the criterion
plays an important role in the conflict between freedom of expression
and the right to reputation, in light of the “duties and responsibilities”
referred to in Article 10(2) of the European Convention on Human
Rights (“ECHR”).21 Where the freedom of expression is exercised
irresponsibly, preference might be given to the right to reputation.
The presented model, naturally, should not be seen as static. It
does not offer absolute solutions to abstract conflicts. Rather, it is
flexible in that its application will be entirely dependent on the
19. It is not yet entirely clear whether the purpose criterion could play a
separate role in this example because the parents/child rights conflict also
implicates the core/periphery criterion. However, this paper suggests that
according it a separate place might be justified.
20. For Olivier De Schutter’s comments in the round table discussion
“Recente Ontwikkelingen in de Rechstpraak van het Europees Hof voor de
Rechten van de Mens” [Recent developments in the jurisprudence of the European
Court of Human Rights], held on May 22, 2002 in Ghent, Belgium, see Eva
Brems, Recente Ontwikkelingen in de Rechstpraak van het Europees Hof voor de
Rechten van de Mens [Recent Developments in the Jurisprudence of the European
Court of Human Rights], in EN TOCH BEWEEGT HET RECHT [AND YET THE LAW
MOVES] 237, 244 (Willem Debeuckelaere and Dirk Voorhoof eds., 2003).
21. European Convention on Human Rights, supra note 2, art. 10.
Everyone has the right to freedom of expression . . . . The exercise of these freedoms,
since it carries with it duties and responsibilities, may be subject to such formalities,
conditions, restrictions or penalties as are prescribed by law and are necessary in a
democratic society, in the interests of national security, territorial integrity or public
safety, for the prevention of disorder or crime, for the protection of health or morals,
for the protection of the reputation or rights of others, for preventing the disclosure of
information received in confidence, or for maintaining the authority and impartiality of
the judiciary.
Id. (emphasis added).
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circumstances of the case, to which certain criteria might not be
relevant or fail to offer a clear solution. For example, consider a
situation where both A’s and B’s position could be strengthened by
general interests of equal importance: α for B and β for A. The
model’s flexibility ensures that judges applying it will retain their
freedom to decide the particular case without being constrained by a
rigid, checklist-like analysis. Additionally, adhering to the logic
underlying the model will allow for the delivery of more consistent
and transparent jurisprudence.
II. THE LEGAL REASONING OF THE EUROPEAN
COURT OF HUMAN RIGHTS
While Article 10 of the ECHR guarantees the right to freedom of
expression, its second paragraph expressly refers to “the protection
of the reputation or the rights of others” as one of the legitimate
grounds for restricting that right.22 However, in its first leading
defamation case, Lingens v. Austria, the ECtHR categorically denied
the existence of a conflict between freedom of expression and right
to reputation, stating that there was no need to read Article 10 in light
of Article 8—the right to respect for private life—of the ECHR.23
The reason for this finding was simple: based on a literal reading of
Article 10(2), the Court did not recognize the existence of a separate
right to reputation, instead treating it as a mere private interest to be
protected.24 However, following Lingens, the ECtHR slowly began to
recognize the existence of a genuine conflict between freedom of
expression and the right to reputation in defamation cases. The
Court’s evolution in this direction became apparent in the Article 10
cases of Feldek v. Slovakia,25 Lesnik v. Slovakia,26 and Radio France
22. Id.
23. See 103 Eur. Ct. H.R. (ser. A) 14, 25 (1986) (clarifying that the adjective
“necessary” in Article 10(2) implies that the freedom of expression can be
infringed only in exceptional circumstances, and that public condemnations of
political figures do not fall within the exception).
24. See id. (noting that the defamatory statements, which concerned comments
made about certain public figures, did not trigger any conflicts with privacy rights).
25. See 2001-VIII Eur. Ct. H.R. 91, 110 (acknowledging that the prioritization
of a public figure’s personality rights is not “necessary in a democratic society” as
provided under Article 10(2), and therefore is not a sufficient and relevant
justification for interfering with the applicant’s Article 10 rights).
26. See 2003-IV Eur. Ct. H.R. 169, 179 (ruling that it was necessary and
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v. France, the latter being the first case in which the Court expressly
stated that “the right to protection of one’s reputation is . . . one of
the rights guaranteed by [Article 8], as one element of the right to
respect for private life.”27
This jurisprudential evolution culminated with Chauvy v. France,
an Article 10 case in which the Court for the first time identified the
existence of a conflict between two ECHR rights in defamation
cases.28 Chauvy represented a classic example of a defamation case.
The applicants had published a book on the arrest of the French
Resistance’s leader, Jean Moulin, by the Nazis during World War
II.29 The book raised the possibility that Mr. and Mrs. Aubrac, former
members of the Resistance, had “betrayed Jean Moulin and had
thereby been responsible for his arrest, suffering and death.”30 Mr.
and Mrs. Aubrac instituted libel proceedings against the author and
publisher of the book.31 The domestic courts found them guilty of
defamation and sentenced them to a fine.32 They were also ordered to
publish a warning in each book, indicating the conviction, and to pay
damages to Mr. and Mrs. Aubrac.33 The applicants consequently
complained of a violation of their freedom of expression at the
ECtHR.34 In assessing their application, the Court balanced the
public’s interest in being informed and the need to protect the
reputation of Mr. and Mrs. Aubrac.35
[T]he Court must verify whether the authorities struck a fair balance when
sufficient under Article 10(2) to interfere with the applicant’s Article 10(1) right to
freedom of expression because the applicant’s statements of fact, which contained
accusations of unlawful and abusive conduct, were unsubstantiated by evidence
and were capable of insulting the public prosecutor and affecting him in the
performance of his duties).
27. 2004-II Eur. Ct. H.R. 125, 148.
28. See 2004-VI Eur. Ct. H.R. 211, 229-30 (recognizing that a duty of the
Court is to verify the proper balance of conflicting rights, such as Article 10’s
guarantee of freedom of expression and Article 8’s guarantee of protection of
reputation and private life).
29. Id. at 212.
30. Id. at 229.
31. Id. at 213.
32. Id. at 218 (stating that the French court fined the author 100,000 Francs and
the chair of the publishing company 60,000 Francs).
33. Id.
34. Id. at 218, 220.
35. Id. at 229.
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protecting two values guaranteed by the Convention which may come into
conflict with each other in this type of case, namely, on the one hand,
freedom of expression protected by Article 10 and, on the other, the right
of the persons . . . to protect their reputation, a right which is protected by
Article 8 of the Convention as part of the right to respect for private life.36
In resolving the conflict, the ECtHR underlined the importance of
both rights involved. While the Court emphasized the crucial role of
the press in a democratic society, it attached more weight to the
domestic courts’ findings that the author had made particularly grave
insinuations for which he could not rely on the defence of good faith,
since he “had failed to respect the fundamental rules of historical
method in the book.”37 The Court consequently found that the
domestic court’s ruling struck a fair balance between both rights
involved because it had not construed the “principle of freedom of
expression too restrictively or the aim of protecting the reputation of
others too extensively.”38 Having further established that the
sanctions imposed on the applicants in the domestic proceedings
were not unreasonable and not unduly restrictive of their freedom of
expression, the Court found that there had been no violation of
Article 10.39
This case and others like it, by confirming that the right to
reputation is protected under Article 8, paved the way for defamation
plaintiffs, who had failed to obtain satisfaction in domestic
proceedings, to claim a violation of Article 8 at the ECtHR.40 In
addition to dozens of cases in which the conflict between freedom of
expression and the right to protection of reputation is examined
36. Id. at 229-30.
37. Id. at 231 (agreeing with the French court’s decision to convict the
applicant and to reject his plea of good faith because he had made grave
insinuations and had failed to exercise appropriate and sufficient caution, which in
this case would have required a critical analysis of sources).
38. Id. (determining that the infringement on the applicants’ right to freedom of
expression was not impermissibly severe, given the facts that the book remained in
publication and that the fines imposed were “relatively modest”).
39. Id. at 232 (finding that the state’s interference with the right was
proportionate to the legitimate aim pursued).
40. Cf. Stijn Smet, Of Rights and Interests, STRASBOURG OBSERVERS, April 28,
2010, http://strasbourgobservers.com/2010/04/28/of-rights-and-interests/ (noting
that the the ECtHR generally recognizes a conflict between the right to freedom of
expression and the right to reputation, even if the Court does not specifically
identify or resolve the conflict).
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under Article 10, this jurisprudential development gave rise to
several Article 8 cases addressing the conflict, including the leading
case of Pfeifer v. Austria.41
A closer examination of all Court judgments and relevant
admissibility decisions in defamation cases since Chauvy shows that
the Court has explicitly identified the conflict between freedom of
expression and the right to reputation in twenty-four of the ninety
relevant cases.42 However, there are also two Article 8 cases that are
41. App. No. 12556/03 (Eur. Ct. H.R. Nov. 15, 2007) (HUDOC Database),
available at http://cmiskp.echr.coe.int/tkp197/search.asp?skin=hudoc-en. For a
discussion of this case, see infra text accompanying notes 215-18.
42. In the following cases, the Court identified a tension between Article 8’s
guarantee of protection of right to private life and reputation, and Article 10’s
guarantee of freedom of expression, categorizing the tension as a conflict between
rights, competing interests or values, or in need of a fair balance between Article 8
and Article 10 rights. Those citations with the reference “(HUDOC Database)” can
be found online at http://cmiskp.echr.coe.int/tkp197/search.asp?skin=hudoc-en.
See, e.g., Europapress Holding D.O.O. v. Croatia, App. No. 25333/06, ¶ 58 (Eur.
Ct. H.R. Oct. 22, 2009) (HUDOC Database); Romanenko v. Russia, App. No.
11751/03, ¶ 42 (Eur. Ct. H.R. Oct. 8, 2009) (HUDOC Database); Bodrožić v.
Serbia, App. No. 32550/05, ¶ 55 (Eur. Ct. H.R. June 23, 2009) (HUDOC
Database); Standard Verlags GmbH v. Austria (no. 2), App. No. 21277/05, ¶¶ 46,
52 (Eur. Ct. H.R. June 4, 2009) (HUDOC Database); A. v. Norway, App. No.
28070/06, ¶¶ 65, 66 (Eur. Ct. H.R. Apr. 9, 2009) (HUDOC Database); Times
Newspapers Ltd. v. The United Kingdom (nos. 1 and 2), App. Nos. 3002/03 &
23676/03, ¶¶ 45-46 (Eur. Ct. H.R. Mar. 10, 2009) (HUDOC Database);
Mahmudov v. Azerbaijan, App. No. 35877/04, ¶ 49 (Eur. Ct. H.R. Dec. 18, 2008)
(HUDOC Database); Petrina v. Romania, App. No. 78060/01, ¶ 36 (Eur. Ct. H.R.
Oct. 14, 2008) (HUDOC Database); Pfeifer v. Austria, App. No. 12556/03, ¶¶ 38,
49 (Eur. Ct. H.R. Nov. 15, 2007) (HUDOC Database); Leempoel v. Belgium, App.
No. 64772/01, ¶¶ 67, 78 (Eur. Ct. H.R. Nov. 9, 2006) (HUDOC Database); White
v. Sweden, App. No. 42435/02, ¶¶ 21, 26 (Eur. Ct. H.R. Sept. 19, 2006) (HUDOC
Database); Malisiewicz-Gasior v. Poland, App. No. 43797/98, ¶ 60 (Eur. Ct. H.R.
Apr. 6, 2006) (HUDOC Database); Minelli v. Switzerland (dec.), App. No.
14991/02, ¶ 2 (Eur. Ct. H.R. June 14, 2005) (HUDOC Database); Pedersen v.
Denmark, App. No. 49017/99, ¶ 91 (Eur. Ct. H.R. Dec. 17, 2004) (HUDOC
Database); Cumpănă v. Romania [GC], 2004-XI Eur. Ct. H.R. 69, 89; Karhuvaara
v. Finland, 2004-X Eur. Ct. H.R. 263, 274; Abeberry v. France (dec.), App. No.
58729/00 (Eur. Ct. H.R. Sept. 21, 2004) (HUDOC Database); Chauvy v. France,
2004-VI Eur. Ct. H.R. 211, 229. Compare Kuliś v. Poland, App. No. 15601/01, ¶
54 (Eur. Ct. H.R. Mar. 18, 2008) (HUDOC Database) (acknowledging that the
domestic courts failed to strike a balance between the competing interests), and
Kwiecień v. Poland, App. No. 51744/99, ¶ 52 (Eur. Ct. H.R. Jan. 9, 2007)
(HUDOC Database) (indicating that the domestic courts failed to recognize a
conflict between the right to freedom of expression and the protection of
reputation), with Ivanova v. Bulgaria, App. No. 36207/03, ¶ 67 (Eur. Ct. H.R. Feb.
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difficult to square with the findings in the Chauvy case.43 Most
interesting in this respect are the Court’s considerations in Karakó v.
Hungary.44 This case involved a flyer distributed during an election
campaign in which the applicant, a politician standing in the
elections, was accused of having exercised his parliamentary
functions to the detriment of his country of origin.45 In assessing the
application, the Court denied the existence of a conflict between
freedom of expression and the right to reputation.
The Court is satisfied that the purported conflict between Articles 8 and
10 of the Convention, as argued by the applicant, in matters of protection
of reputation, is one of appearance only. To hold otherwise would result
in a situation where . . . the outcome of the Court’s scrutiny would be
determined by whichever of the supposedly competing provisions was
invoked by an applicant.46
In order to support this argument, the Court reassessed the
question of whether the notion of private life should be extended to
include reputation and concluded that the Court’s prior case law had
only recognized the existence of such a right sporadically, and
mostly in cases involving serious allegations which had an inevitable
direct effect on the applicant’s private life.47
14, 2008) (HUDOC Database) (noting that the domestic courts fully recognized the
conflict). See generally Flux v. Moldova (no. 6), App. No. 22824/04 (Eur. Ct. H.R.
July 29, 2008) (HUDOC Database); Riolo v. Italy, App. No. 42211/07 (Eur. Ct.
H.R. July 17, 2008) (HUDOC Database); Alithia Publ’g Co. v. Cyprus, App. No.
17550/03 (Eur. Ct. H.R. May 22, 2008) (HUDOC Database).
43. See Karakó v. Hungary, App. No. 39311/05, ¶¶ 22-24 (Eur. Ct. H.R. Apr.
28, 2009) (HUDOC Database), available at http://cmiskp.echr.coe.int/tkp197/
search.asp?skin=hudoc-en (finding that, because the applicant did not show that
the publication affected his reputation or caused serious interference with his
private life, there had not been an Article 8 violation); Gunnarsson v. Iceland
(dec.), App. No. 4591/04 (Eur. Ct. H.R. Oct. 20, 2005) (HUDOC Database),
available at http://cmiskp.echr.coe.int/tkp197/search.asp?skin=hudoc-en (declining
to find any Article 8 violation where a newspaper published unsubstantiated
allegations insinuating that a bank director had made potentially unethical business
decisions based on personal motives).
44. App. No. 39311/05.
45. Id. ¶ 7 (recounting the offensive portions of the flyer, which declared that
the applicant voted against the interests of his county and inflicted the gravest of
harm on his own electoral district).
46. Id. ¶ 17.
47. See id. ¶¶ 22-23 (distinguishing between the concept of personal integrity,
as inalieable and protected under human rights law, and reputation, as an external
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This judgment ignores an abundance of case law explicitly
recognizing an individual’s reputation as an element of her private
life protected under Article 8.48 However, Karakó does have the
important value of highlighting the problem of preferential framing
in the context of the conflict between freedom of expression and the
right to reputation. Several authors—one of whom is the President of
the Chamber that delivered the judgment in Karakó—have warned
about this problem, claiming that the Court’s ruling is influenced by
the right invoked by the applicant.49 An examination of the results in
the seventy-nine judgments since Chauvy, both under Article 8 and
Article 10, shows that there is some strength to this argument,
although it is too soon to draw a definitive conclusion on this issue
because of the relatively few number of Article 8 cases.50 The issue
of preferential framing will be addressed in more detail later in this
paper. However, assuming for now that a problem of preferential
framing indeed exists in the context of the conflict between freedom
of expression and the right to reputation, this does not excuse the
reasoning used in the Karakó case. What the Court suggests in
Karakó is that the conflict does not exist because its solution would
be predetermined.51 Rather than avoiding the conflict, the Court’s
social evaluation protected under defamation law).
48. See infra notes 57, 202 and accompanying text. For a detailed analysis of
the role of the right to reputation in the case law of the ECtHR, see Dean
Spielmann & Leto Cariolou, The Right to Protection of Reputation Under The
European Convention on Human Rights, in TEISE BESIKEICIANCIOJE EUROPOJE:
LIBER AMICORUM PRANAS KURIS [LAW IN A CHANGING EUROPE: LIBER AMICORUM
PRANAS KURIS] 401-424 (Saulius Katuoka ed., 2008).
49. See, e.g., De Schutter & Tulkens, supra note 15, at 190 (identifying the
Court’s tendency to view the rule that the applicant invoked as the only right at
stake and to view the government’s measure interfering with that right as an
exception or limitation, rather than as involving protection of a separate,
conflicting right).
50. This author’s examination yields the following results. Of the seventy-four
Article 10 cases, fifty-nine led to the finding of a violation by the Court and fifteen
led to the finding of no violation, while of the five Article 8 cases, three led to the
finding of a violation and two to the finding of no violation. Detailed figures
(violation: no violation) according to the status of the plaintiff in the defamation
proceedings are as follows—Article 10: politician: 31-4; public official: 12-5;
public figure: 7-2; private individual: 7-3; company: 2-1—Article 8: politician: 11; public figure: 0-1; private individual: 2-0.
51. See App. No. 39311/05 at ¶ 17 (concluding that any supposed conflict must
exist in appearance only because the outcome of any actual conflict would be
determined predominantly by which right the applicant invoked).
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aim should be to address the supposed problem of preferential
framing. The model presented in Part II could be extremely helpful
in this respect, most notably because the suggested criteria force the
Court to look at the conflict from the perspective of both rights.52
This is required by the core/periphery criterion, the impact criterion,
the additional rights criterion, and the general interest criterion.53 The
purpose and the responsibility criteria likewise counterbalance the
preferential framing issue by introducing boundaries for the manner
in which human rights can be exercised when they enter into conflict
with other human rights.54
The following sub-sections present an analysis of the case law of
the ECtHR on the conflict between freedom of expression and the
right to reputation. The intention of this analysis is not to determine a
substantive solution to the conflict, nor to indicate which right should
prevail. Instead, the aim is to identify interesting lines of legal
reasoning used by the Court and to assess the Court’s consistency
and transparency under both Article 10 and Article 8, in light of the
model presented above.
A. THE LEGAL REASONING OF THE COURT UNDER ARTICLE 10 OF
THR ECHR
In theory, there should be many interesting opportunities to
compare pre- and post-Chauvy case law, given that the nature of the
conflict between freedom of expression and right to reputation has
shifted from one between a Convention right and a private interest
(at best, protected at the international level and/or as a fundamental
right in domestic constitutions)55 to one between two Convention
rights with a priori equal value. When the Court is confronted by a
52. See supra notes 9–21 and accompanying text.
53. See supra notes 15–18 and accompanying text.
54. See supra notes 19–21 and accompanying text.
55. The right to reputation is protected by the International Covenant on Civil
and Political Rights, art. 17, adopted Dec. 16, 1966, 999 U.N.T.S. 171 [hereinafter
ICCPR] (“No one shall be subjected to . . . unlawful attacks on his honour and
reputation . . . [and] [e]veryone has the right to the protection of the law against
such . . . attacks.”). Furthermore, several national Constitutions protect a right to
reputation or honor. See, e.g., KONSTYTUCJA RZECZYPOSPOLITEJ POLSKIEJ
[CONSTITUTION], Apr. 2, 1997, art. 47 (Pol.) (“Everyone shall have the right to
legal protection of his private and family life, of his honour and good reputation
and to make decisions about his personal life.”).
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situation in which a Convention right is opposed by a private interest
not protected by the Convention, the situation is relatively
straightforward. Whatever the decision in the concrete case might be,
the Convention right receives greater weight in the abstract
relationship with the private interest. The Court will thus apply the
classic proportionality test to determine whether the interference with
the applicant’s freedom of expression is proportionate to the
legitimate aim pursued. However, matters change when two
Convention rights conflict. Neither right has preference over the
other, at least not in abstract terms.56 In such circumstances one
would expect to see changes in the Court’s reasoning. Due to the
presence of two Convention rights, the Court can reasonably be
expected to take both human rights into account on an equal footing.
This position is justified by the fact that, if the conflict cannot be
defused as a fake conflict and if no practical concordance can be
found, the decision of the Court will have inescapable negative
consequences for a right protected under the Convention. Particular
attention to the identification of the conflict and full transparency and
consistency in the Court’s reasoning are thus crucial.
It is, therefore, all the more striking that the Court has failed to
consistently identify the conflict between freedom of expression and
the right to reputation in post-Chauvy defamation cases. While the
Court has taken an explicit stance on the conflict in its Article 8
cases, as of the date of this publication it has only explicitly
identified the conflict in nineteen of eighty-three relevant Article 10
cases since Chauvy.57 A partial explanation for the lack of
56. Compare European Convention on Human Rights, supra note 2, art. 2
(“Everyone’s right to life shall be protected by law.”), with id. art. 3 (“No one shall
be subjected to torture or to inhuman or degrading treatment or punishment.”).
Other than by stating which rights are derogable and which are not, the ECHR
does not indicate the relative importance of its rights provisions.
57. In the following cases, the Court directly addressed the tension between the
right to freedom of expression and the right to protection of one’s reputation.
Those citations with the reference “(HUDOC Database)” can be found online at
http://cmiskp.echr.coe.int/tkp197/search.asp?skin=hudoc-en. See, e.g., Europapress
Holding D.O.O. v. Croatia, App. No. 25333/06, ¶ 58 (Eur. Ct. H.R. Oct. 22, 2009)
(HUDOC Database); Romanenko v. Russia, App. No. 11751/03, ¶ 42 (Eur. Ct.
H.R. Oct. 8, 2009) (HUDOC Database); Bodrožić v. Serbia, App. No. 32550/05, ¶
45 (Eur. Ct. H.R. June 23, 2009) (HUDOC Database); Standard Verlags GmbH v.
Austria (no. 2), App. No. 21277/05, ¶¶ 46, 52 (Eur. Ct. H.R. June 4, 2009)
(HUDOC Database); Mahmudov v. Azerbaijan, App. No. 35877/04, ¶ 49 (Eur. Ct.
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identification might be found in the fact that the Court has refrained
from developing a distinctive test to tackle the conflict. On the
contrary, even after recognizing the existence of a conflict between
two human rights in the Chauvy case, the Court has continued to
apply the proportionality test, as developed under its Article 10 case
law prior to Chauvy, in an identical manner in subsequent cases.58 As
a result, it is often unclear to what extent the Court has taken the
presence of two Convention rights into account when ruling on the
particular case before it.
The conclusion that the Court has only minimally changed its legal
reasoning after Chauvy is not only contrary to expectations but also
reveals a worrisome problem of principle. If conflicts between the
freedom of expression and the right to reputation are resolved in a
H.R. Dec. 18, 2008) (HUDOC Database); Flux v. Moldova (no. 6), App. No.
22824/04, ¶ 25 (Eur. Ct. H.R. July 29, 2008) (HUDOC Database); Riolo v. Italy,
App. No. 42211/07, ¶ 62 (Eur. Ct. H.R. July 17, 2008) (HUDOC Database);
Alithia Publ’g Co. v. Cyprus, App. No. 17550/03, ¶ 63 (Eur. Ct. H.R. May 22,
2008) (HUDOC Database); Kuliś v. Poland, App. No. 15601/01, ¶ 54 (Eur. Ct.
H.R. Mar. 18, 2008) (HUDOC Database); Times Newspapers Ltd. v. The United
Kingdom (nos. 1 and 2), App. Nos. 3002/03 & 23676/03, ¶¶ 45-46 (Eur. Ct. H.R.
Mar. 10, 2009) (HUDOC Database); Ivanova v. Bulgaria, App. No. 36207/03, ¶ 67
(Eur. Ct. H.R. Feb. 14, 2008) (HUDOC Database); Kwiecień v. Poland, App. No.
51744/99, ¶ 52 (Eur. Ct. H.R. Jan. 9, 2007) (HUDOC Database); Leempoel v.
Belgium, App. No. 64772/01, ¶¶ 67, 78 (Eur. Ct. H.R. Nov. 9, 2006) (HUDOC
Database); Malisiewicz-Gąsior v. Poland, App. No. 43797/98, ¶ 60 (Eur. Ct. H.R.
Apr. 6, 2006) (HUDOC Database); Pedersen v. Denmark, App. No. 49017/99, ¶ 91
(Eur. Ct. H.R. Dec. 17, 2004) (HUDOC Database); Cumpănă v. Romania [GC],
2004-XI Eur. Ct. H.R. 69, 89; Karhuvaara v. Finland, 2004-X Eur. Ct. H.R. 263,
274; Abeberry v. France (dec.), App. No. 58729/00 (Eur. Ct. H.R. Sept. 21, 2004)
(HUDOC Database).
58. In doing so, the Court assesses the proportionality of the interference by
looking at a wide variety of factors, including the status of the applicant; the status
of the plaintiff in the defamation proceedings; the existence of a public interest; the
content, tone and form of the statement; the distinction between statements of fact
and value judgments; the duties and responsibilities referred to in Article 10(2);
and the nature and severity of the penalty. See, e.g., Porubova, App. No. 8237/03
at ¶¶ 49-50 (emphasizing the nature and severity of the penalty in its holding);
Öztürk v. Turkey, App. No. 17095/03, ¶ 32 (Eur. Ct. H.R. June 9, 2009) (HUDOC
Database), available at http://cmiskp.echr.coe.int/tkp197/search.asp?skin=hudocen (criticizing the domestic court for not considering the applicant’s contribution to
a matter of public interest); Chauvy v. France, 2004-VI Eur. Ct. H.R. 211, 230
(focusing on the content, tone, and form of the statement); Lingens v. Austria, 103
Eur. Ct. H.R. (ser. A) 14, 26 (1986) (holding that because politicians open
themselves to public scrutiny, they must exhibit a greater tolerance for criticism).
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near identical manner to situations where the freedom of expression
conflicts with a mere private interest—the reputation of the plaintiff,
this offers a strong indication that in the view of the Court there
exists little difference between a Convention right to reputation and a
private interest in one’s reputation, not protected by the Convention.
This reasoning is problematic because it either raises the level of
importance of a mere private interest to that of a Convention right or
demotes the importance of a Convention right to that of a mere
interest.59 In both cases, the principled higher value of human rights
protected by the ECHR, serving as a trump over interests, is
damaged.60 This observation provides further justification for the use
of a different reasoning which is specifically tailored to resolve the
conflict between freedom of expression and the right to reputation.
Such a reasoning can fit naturally into the classic proportionality test,
but the presented elements argue against applying the test in the
same way it was applied prior to Chauvy.
The following subsections offer an analysis of the Court’s
defamation case law under the criteria of the model developed above
to assess if, how, and to what extent the Court applies these criteria
in the post-Chauvy era. More crucially, these subsections consider
the post-Chauvy case law in order to determine how the Court could
59. However, it must be noted that, looking beyond the confines of the ECHR,
the right to reputation is protected by Article 17 of the ICCPR, supra note 55, and
that national Constitutions, like that of Poland, may also protect a right to
reputation or honor. E.g., KONSTYTUCJA RZECZYPOSPOLITEJ POLSKIEJ
[CONSTITUTION], Apr. 2, 1997, art. 47 (Pol.). Referring to reputation as a mere
private interest prior to Chauvy may thus hide the fact that it actually received
protection at the international and/or national level. However, the fact remains that
reputation was not recognized as a human right under the ECHR prior to Chauvy
and Pfeifer.
60. Cf. supra note 56. The conclusion drawn is thus contingent on the
acceptance that, for the purposes of application of the ECHR, Convention rights
should also receive a priori greater weight than interests protected by a
fundamental right at the national or international level, but not recognized as a
Convention right. Support for this argument may be found in Chassagnou v.
France, App. Nos. 25088/94, 28331/95, & 28443/95, ¶ 113 (Eur. Ct. H.R. Apr. 29,
1999) (HUDOC Database), available at http://cmiskp.echr.coe.int/tkp197/search
asp?skin=hudoc-en (“Where restrictions are imposed on a right guaranteed by the
Convention in order to protect ‘rights and freedoms’ not . . . enunciated therein[,] .
. . only indisputable imperatives can justify interference with enjoyment of a
Convention right.”).
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improve the consistency and transparency of its legal reasoning.
Finally, where pertinent, the minimal changes in the Court’s case law
will be indicated.
1. The Impact Criterion
The ECtHR has relied on arguments that are closely linked to the
impact criterion—or the extent to which both rights would be
impaired by allowing the opposing right to take preference—in
several aspects of its post-Chauvy defamation case law.
a. Nature and Severity of the Penalty
In many defamation cases, the Court has attached particular
weight to the role of the press as a “public watchdog” and its
contribution to ensuring the proper functioning of a democracy.61 In
this respect the Court has implicitly considered the impact criterion
by referring to the “chilling effect” that would result from restrictions
on the exercise of freedom of expression by members of the press or
applicants with similar functions.62 Cumpănă v. Romania provides a
good example of the application of this argument.63 In this case,
journalists were criminally convicted for publishing newspaper
articles alleging that a civil servant had behaved unlawfully in
awarding private contracts for the towing of illegally parked
vehicles.64 The journalists were sentenced to prison for seven months
and prohibited from working as journalists for one year. In assessing
61. See, e.g., Porubova, App. No. 8237/03 at ¶ 42 (reiterating the importance
of the press in a political democracy); Lingens, 103 Eur. Ct. H.R. at 26 (“Freedom
of the press . . . [and more generally of political debate] . . . is at the very core of
the concept of a democratic society.”).
62. See Selistö v. Finland, App. No. 56767/00, ¶ 53 (Eur. Ct. H.R. Nov. 16,
2004) (HUDOC Database), available at http://cmiskp.echr.coe.int/tkp197/search
.asp?skin=hudoc-en (requiring careful scrutiny of State measures that are “capable
of discouraging the press from disseminating information on matters of legitimate
public concern”); Cumpănă, 2004-XI Eur. Ct. H.R. at 95 (expressing that the
“chilling effect” of sanctions on journalistic freedom is a factor in determining the
proportionality of such sanctions); Nikula v. Finland, 2002-II Eur. Ct. H.R. 297,
312 (noting the “potential ‘chilling effect’” of even minor criminal penalties on
freedom of expression).
63. See 2004-XI Eur. Ct. H.R. at 95 (declaring that the fear of imprisonment
has a chilling effect on the freedom of expression and “works to the detriment of
society as a whole”).
64. Id. at 73, 75-76.
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the application, the Court established that although states parties are
permitted, or even required by their positive obligations under
Article 8, to regulate freedom of expression to ensure adequate
protection of an individual’s reputation, they must not do so in a
manner that has a “chilling effect” on the media.65 The Court found a
violation of Article 10 in the instant case because it considered the
measures taken to protect the reputation of the plaintiff to be
“manifestly disproportionate,” since the imposition of prison
sentences and/or a prohibition on exercising their profession may
inhibit journalists from reporting on matters of general interest.66
The Court’s reasoning in Cumpănă offers great potential. It used
the impact criterion to determine that, even if the right to reputation
takes precedence over the freedom of expression in certain cases, the
resulting penalty for the exercise of the freedom of expression should
not be an excessive reaction.67 In other words, the Court used the
impact criterion to determine that a Praktische Konkordanz should
be found at the level of the penalty.
Unfortunately, Cumpănă appears to be a rather exceptional case.
The only other case in which the Court relied on this line of
reasoning is Mahmudov v. Azerbaijan.68 An analysis of the entire
case law gives the impression that the Court has applied the factor of
the nature and severity of the penalty in an ambiguous manner. The
Court sometimes found even a minor sanction to be disproportionate
when no relevant or sufficient reasons were presented for the
restriction,69 while in cases where those reasons were asserted, it held
65. See id. at 90, 94-95 (warning that authorities must not undermine or deter
the media from playing their “vital role of ‘public watchdog’” in a democratic
society—alerting the public to the suspected misuse of government power).
66. Id. at 96.
67. See id. at 94, 96 (asserting that the nature and severity of the punishment
are factors that the Court considers when determining whether the state action is a
necessary restriction on the applicant’s rights, and holding that the penalty in the
case before it was excessive).
68. See App. No. 35877/04, ¶¶ 37, 49 (Eur. Ct. H.R. Dec. 18, 2008) (HUDOC
Database), available at http://cmiskp.echr.coe.int/tkp197/search.asp?skin=hudocen (quoting extensively from Cumpănă regarding the role of media as a watchdog,
the factors to consider for proportionality, and the chilling effect that State
measures can have on freedom of the press).
69. See, e.g., Standard Verlags GmbH v. Austria, App. No. 19710/02, ¶ 59
(Eur. Ct. H.R. Nov. 2, 2006) (HUDOC Databse), available at http://cmiskp.echr.
coe.int/tkp197/search.asp?skin=hudoc-en (noting that even the “modest fine
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much more severe sanctions to not be excessive.70 This ambiguity
could be interpreted in two ways—either as an indication that the
Court is struggling with the conflict between freedom of expression
and the right to reputation, not knowing where to fit the nature and
severity of the penalty into the equation, or as a result of a lack of
transparency in its reasoning. Without having the benefit of insight
into the Judges’ minds, it is impossible to know with certainty which
interpretation is correct.71 Whatever the case may be, the Court’s
reasoning would benefit from increased and explicit attention to the
suspended on probation” was disproportionate because the applicant should not
have been convicted at all); Brasilier v. France, App. No. 71343/01, ¶ 43 (Eur. Ct.
H.R. Apr. 11, 2006) (HUDOC Databse), available at http://cmiskp.echr
.coe.int/tkp197/search.asp?skin=hudoc-en (ruling that the sanction of paying
symbolic damages of one French Franc was excessive, and therefore constituted a
violation of Article 10).
70. The following cases involved a criminal conviction of the applicant, with
imposition of a fine and an order to pay damages, where the Court held that the
very imposition of a criminal penalty does not itself violate Article 10. See Ivanova
v. Bulgaria, App. No. 36207/03, ¶ 68 (Eur. Ct. H.R. Feb. 14, 2008) (HUDOC
Database), available at http://cmiskp.echr.coe.int/tkp197/search.asp?skin=hudocen (“In view of the margin of appreciation left to Contracting States by that
provision, a criminal measure as a response to defamation cannot, as such, be
considered disproportionate to the aim pursued.”); Lindon v. France [GC], App.
Nos. 21279/02 & 36448/02, ¶ 59 (Eur. Ct. H.R. Oct. 22, 2007) (HUDOC Databse),
available
at
http://cmiskp.echr.coe.int/tkp197/search.asp?skin=hudoc-en
(concluding that the fine was appropriate, as were the civil damages, because they
were both moderate); Ivanciuc v. Romania (dec.), 2005-XI Eur. Ct. H.R. 251, 259
(concluding that the penalty was proportionate, despite the fact that the applicant’s
criminal conviction was “very serious,” because the fine and civil damages were
modest and the applicant showed a manifest lack of interest during the criminal
proceeding).
71. Much of the confusion is arguably also caused by the fact that the Court
rules on the proportionality of the sanction in cases where it has already
established that there are no relevant and sufficient reasons for the restriction of
freedom of expression. In the vast majority of those cases, the Court appears to be
determined to find the sanctions applied to be disproportionate, no matter what
their nature or severity might be. Naturally, this leads to apparent contradiction in
other cases, where the Court is of the opinion that the right to reputation should
take precedence, thus leading it to find that more severe sanctions are not
disproportionate and thus not violative of the Convention. Compare Standard
Verlags GmbH, App. No. 19719/02 at ¶ 59 (holding that the fine was
disproportionate because the conviction was not justified, given the domestic
court’s failure to make a factual finding as to the truth of the statement), with
Ivanciuc, 2005-XI Eur. Ct. H.R. at 258 (acknowledging that the fine was
proportionate because the assertions had not been made in good faith and lacked a
factual basis).
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rationales developed in Cumpănă and Mahmudov.72
b. Status of the Plaintiff
Ever since Lingens v. Austria, the ECtHR has distinguished
between several categories of plaintiffs in defamation proceedings
and established the limits of acceptable criticism against them.73
Politicians are required to demonstrate a greater degree of tolerance
to criticism than ordinary citizens, since a politician “inevitably and
knowingly lays himself open to close scrutiny of his every word and
deed.”74 The level of acceptable criticism is also more expansive for
public servants than private individuals.75 However, because they do
not knowingly and willingly lay themselves open to close scrutiny to
the same extent as politicians do, and because they “must enjoy
public confidence . . . free of undue perturbation if they are to be
successful in performing their tasks,” the range of acceptable
criticism against public servants will be less broad than it is for
politicians.76 With regard to public figures, the Court has consistently
held that when private individuals enter the public arena they lay
themselves open to public scrutiny and should therefore display a
greater degree of tolerance to criticism.77 Finally, the Court reasons
72. Naturally, this line of reasoning will be most useful in a case where the
Court finds that relevant and sufficient reasons exist to award precedence to the
right to reputation over the freedom of expression, which would set aside the
matter of the proportionality of the sanction in determining whether Article 10 has
been violated.
73. See Lingens v. Austria, 103 Eur. Ct. H.R. (ser. A) 14, 25-26 (1986)
(describing the level of acceptable criticism for politicians as higher than that for a
private individual).
74. See id. at 26 (acknowledging that politicians too have a right to the
protection of their reputation, but that the protections must be balanced with the
interests of open debate in a democratic society).
75. E.g., Nikula v. Finland, 2002-II Eur. Ct. H.R. 297, 310-11.
76. See Lesnik v. Slovakia, 2003-IV Eur. Ct. H.R. 169, 178.
77. See Bodrožić v. Serbia, App. No. 32550/05, ¶ 54 (Eur. Ct. H.R. June 23,
2009) (HUDOC Database), available at http://cmiskp.echr.coe.int/tkp197/
search.asp?skin=hudoc-en (noting that the plaintiff had become a public figure
after writing a book on a matter of public interest and appearing on television, and
was therefore “obliged to display a greater degree of tolerance”); Karman v.
Russia, App. No. 29372/02, ¶ 35 (Eur. Ct. H.R. Dec. 14, 2006) (HUDOC Databse),
available at http://cmiskp.echr.coe.int/tkp197/search.asp?skin=hudoc-en (noting
that since the plaintiff organized and spoke at a public gathering he should be
aware of the risk of criticism); Jerusalem v. Austria, 2001-II Eur. Ct. H.R. 75, 83
(finding that since the plaintiffs had participated in public debate, they should have
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that private individuals should be awarded the largest protection
from defamatory statements in Article 10 cases because they have
not specifically opened themselves up to public scrutiny.78
By creating a division between different categories of plaintiffs
and requiring that certain persons should exhibit a greater degree of
tolerance to criticism than others, the Court creates an excellent
opportunity for the application of the impact criterion. Theoretically
speaking and extrapolating from the Court’s prior reasoning in this
respect, this application could take the following form. Categories of
persons who willingly and knowingly lay themselves open to public
scrutiny will expect the possibility of criticism. Therefore, the impact
of defamatory statements on their reputation is arguably less
profound and more easily mitigated. The limits of acceptable
criticism are thus wider with regard to these persons. Conversely, the
impact of defamatory statements on the reputation of persons who do
not lay themselves open to public scrutiny will be greater. Therefore,
the level of acceptable criticism with regard to these persons is more
limited and their reputation arguably deserves additional protection.
Keeping the above in mind, it is striking that the recognition of the
existence of a conflict between freedom of expression and the right
to reputation has had virtually no effect on the way the Court
addresses the status of the plaintiff in post-Chauvy cases. Even more
problematic is the Court’s one-sided application of the impact
criterion.79 In cases involving defamation of politicians, for instance,
the foundation of the Court’s reasoning always lies in the finding that
the limits of acceptable criticism are wider with regard to
politicians.80 However, in the examined Article 10 cases regarding
defamation of a private individual, the Court rarely initiates its
analysis from the converse assumption that the level of acceptable
a higher degree of tolerance for criticism); Nilsen v. Norway [GC], 1999-VIII Eur.
Ct. H.R. 63, 88-89 (asserting that it was not the individual’s capacity as a public
servant that opened him to public scrutiny, but instead his choice to contribute and
participate in the public debate).
78. E.g., Tammer v. Estonia, 2001-I Eur. Ct. H.R. 267, 280.
79. See De Schutter & Tulkens, supra note 15, at 190 (noting that the Court
frames the issue as principally involving the right invoked by the applicant, and
only evaluates the impact on a conflicting right if the opposing party raises it as a
defense).
80. See, e.g., Lingens v. Austria, 103 Eur. Ct. H.R. (ser. A) 14, 26 (1986).
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criticism is more limited with regard to private individuals.81 The
Court thus succumbs to preferential framing. Rather than looking to
factors that both have an impact on the strength of the applicant’s
argument for freedom of expression and help determine the
importance of the plaintiff’s right to reputation, the Court focuses its
attention on the freedom of expression alone. In order to truly
address the conflict, the status of the plaintiff should be used not only
to determine the limits of acceptable criticism, but also to assess the
importance of the right to reputation. Arguably, the latter should
even be the Court’s primary function when considering the status of
the plaintiff. It makes sense to assess the importance of the right to
reputation on the basis of the status of the plaintiff, just as it is
logical to determine the breadth of the freedom of expression of the
applicant on the basis of her status.
c. Content, Tone, and Form of the Statement
An important element to consider when assessing the content of
the statement is the use of insulting or offensive terms.82 The Court
has exhibited great tolerance for such terms, especially prior to
Chauvy, pointing to the extensive protections provided even to
insulting speech under Article 10. The Court has ruled that the use of
terms such as “racist agitation,” “idiot,” “Nazi,” “Neo-Nazi,” and
“fascist” does not automatically justify restriction of the freedom of
expression.83 Accordingly, the Court has almost always found a
violation of Article 10, particularly when the terms are used in the
81. But see Tammer, 2001-I Eur. Ct. H.R. at 280-81 (describing the limits of
acceptable criticism for private individuals as narrow, but nonetheless comparing
those limits to those of a politician or government without ever determining if the
plaintiff, a former politician, was a public or private figure).
82. Cf. Chauvy v. France, 2004-VI Eur. Ct. H.R. 211, 231 (reaching the
conclusion that the conviction of the defendants was well-reasoned and deserved in
part because they made “grave insinuations” in their book).
83. See, e.g., Scharsach v. Austria, 2003-XI Eur. Ct. H.R. 127, 137 (holding
that the term “Nazi” did not ipso facto support a conviction just because of the
special stigma attached to it); Unabhängige Initiative Informationsvielfalt v.
Austria, 2002-I Eur. Ct. H.R. 275, 283 (finding that accusing a politician of “racist
agitation” was not a gratuitous personal attack in part because it contributed to a
political discussion about subjects of general interest to the public); Oberschlick v.
Austria (no. 2), 1997-IV Eur. Ct. H.R. 1268, 1274-75 (concluding that the use of
the term “Trottel” (“idiot”) did not constitute a gratuitous personal attack because
the author provided an objective explanation for the word’s use).
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context of a public debate as a reaction to indignation knowingly
aroused by others—usually extreme right-wing politicians.84
Oberschlick v. Austria (no. 2), for instance, concerned a
newspaper publication in which extreme right-wing politician Jörg
Haider was referred to as an “idiot” in reaction to a speech in which
he glorified the role of all soldiers, including those in the German
army, who had taken part in World War II.85 The applicant
subsequently published a newspaper article containing the following
sentence: “I will say of Jörg Haider, firstly, that he is not a Nazi and,
secondly, that he is, however, an idiot.”86 The applicant was
consequently convicted and ordered to pay a fine for having used the
insulting term to describe Mr. Haider.87 The domestic courts also
ordered the seizure of the newspaper issue, which was later retracted,
and required the newspaper to publish news of the conviction.88 In
finding an Article 10 violation, the ECtHR relied heavily on the fact
that the term “idiot” was used in the context of a political discussion
provoked by Mr. Haider’s speech.89 The Court deemed that the term
may have been offensive, but not excessively so, in light of the
indignation Mr. Haider knowingly aroused.90
Cases in which the terms “Nazi,” “Neo-Nazi,” and “fascist” are
used often also involve a charge of criminal behavior, because many
84. See, e.g., Scharsach, 2003-XI Eur. Ct. H.R. at 138 (holding that Article
10(2) provides little support for restrictions on debate over questions of public
interest); Unabhängige Initiative, 2002-I Eur. Ct. H.R. at 283 (noting that a charge
of “racist agitation” directed toward a politician did not necessitate government
intervention); Oberschlick (no. 2), 1997-IV Eur. Ct. H.R. at 1274-75 (describing
Article 10 as protective of both the substance of the ideas conveyed and the form
of conveyance). But see Constantinescu v. Romania, 2000-VIII Eur. Ct. H.R. 31,
43 (finding that the applicant’s use of the term “‘delapidatori’, which refers to
persons found guilty of fraudulent conversion, was offensive because the subjects
had not been convicted by a court, and thus there were “relevant and sufficient”
reasons for government interference with the applicant’s speech).
85. Oberschlick (no. 2), 1997-IV Eur. Ct. H.R. at 1270.
86. Id.
87. Id. at 1271 (specifying twenty day-fines of 200 Austrian schillings, each
carrying ten days imprisonment upon default).
88. Id. at 1270-71.
89. See id. at 1276 (reasoning further that the insult was an opinion, or value
judgment, “whose truth is not susceptible of proof”).
90. See id. (characterizing the insult as “polemical,” but not as a gratuitous
attack given the author’s “objectively understandable explanation” that he was
merely responding to Mr. Haider’s incendiary speech).
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209
European countries treat propagating and defending NationalSocialist ideas as a criminal offense.91 However, in its case law prior
to Chauvy, the Court has stated on many occasions that this element
alone does not justify a conviction for defamation since “the degree
of precision for establishing the well-foundedness of a criminal
charge by a competent court can hardly be compared to that which
ought to be observed by a journalist when expressing his opinion on
a matter of public concern.”92 In only one case prior to Chauvy did
the Court find that the use of an insulting term related to Nazism
justified a domestic finding of defamation. However, this case—
Wabl v. Austria—did not involve use of the term by a member of the
press to describe a politician or public official, unlike the other
above-referenced cases where the Court found a violation of Article
10.93 Instead, it concerned the opposite situation—a politician reacted
to a newspaper article about him by referring to it as “Nazijournalism.”94
In its case law after Chauvy, the Court appears to be less forgiving
of the use of insulting terms. Although in several cases it has
continued to rule that the use of terms such as “Nazi,” “insane,” or
“neofascist” does not automatically justify a restriction for the
reasons set out above,95 it has on other occasions found that the use
91. See, e.g., STRAFGESETZBUCH [STGB] [CRIMINAL CODE], Nov. 13, 1998,
REICHSGESETZBLATT [RGBL.] I, §§ 86, 130 (Ger.), available at
http://www.iuscomp.org/gla/statutes/StGB.htm (prohibiting the incitement of
hatred against segments of the population, the distribution or display of materials
which incite such hatred, and the public approval of the Nazi party’s acts or denial
of the heinousness of those acts).
92. E.g., Unabhängige Initiative Informationsvielfalt v. Austria, 2002-I Eur. Ct.
H.R. 275, 284; Scharsach v. Austria, 2003-XI Eur. Ct. H.R. 127, 137.
93. App. No. 24773/94, ¶¶ 22-23 (Eur. Ct. H.R. Mar. 21, 2000) (HUDOC
Database), available at http://cmiskp.echr.coe.int/tkp197/search.asp?skin=hudocen (explaining the Austrian Supreme Court’s decision that the politician’s
indignation about defamatory reporting did not justify his retort—characterized as
a value judgment attacking the journalist’s reputation, not as political speech
intending to shock or provoke).
94. Id. ¶ 42 (finding both the original article and the politician’s response to be
defamatory, but upholding the order enjoining the politician’s public use of the
offensive phrase).
95. See, e.g., Brunet-Lecomte v. France, App. No. 13327/04, ¶ 35 (Eur. Ct.
H.R. Nov. 20, 2008) (HUDOC Database), available at http://cmiskp.echr.coe
.int/tkp197/search.asp?skin=hudoc-en (asserting that the word “énergumène”
(“fanatic”) is polemical, but does not exceed normal press provocation); Karman v.
Russia, App. No. 29372/02, ¶ 39 (Eur. Ct. H.R. Dec. 14, 2006) (HUDOC Databse),
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of terms such as “executioner” or “chief of a gang of killers” exceeds
the allowed limits of exaggeration and provocation.96 These cases are
some of the few instances where the Court has assessed the impact of
the statement on the reputation of the plaintiff. In Lindon v. France,
the Court also pointed out that the use of certain terms or statements
is not necessary for the exercise of one’s freedom of expression in
bringing across an idea or opinion.97 Lindon involved a series of
criminal convictions related to the publication of a book entitled
“Jean-Marie Le Pen on Trial.”98 The book was a fictional work with
real life elements about the murder of a North African man by a
Front National (“FN”) militant.99 The FN is an extreme right-wing
political party led by Mr. Le Pen, and the book raised questions as to
Mr. Le Pen’s ultimate responsibility for the militant’s violent
available
at
http://cmiskp.echr.coe.int/tkp197/search.asp?skin=hudoc-en
(reiterating that the stigma attached to the words “Nazi” or “neo-fascist” does not
support a conviction for defamation on its own); Wirtschafts-Trend ZeitschriftenVerlags GmbH v. Austria, App. No. 58547/00, ¶ 38 (Eur. Ct. H.R. Oct. 27, 2005)
(HUDOC Database), available at http://cmiskp.echr.coe.int/tkp197/search.asp?
skin=hudoc-en (determining that use of the term “punishment camps” did not
belittle the heinousness of Nazi concentration camps).
96. See Lindon v. France [GC], App. Nos. 21279/02 & 36448/02, ¶¶ 57, 66
(Eur. Ct. H.R. Oct. 22, 2007) (HUDOC Databse), available at
http://cmiskp.echr.coe.int/tkp197/search.asp?skin=hudoc-en (agreeing with the
state court’s determination that the terms “chief of a gang of killers” and
“vampire” were unacceptable because they were not just value judgments but
allegations of fact); Ivanciuc v. Romania (dec.), 2005-XI Eur. Ct. H.R. 251, 258
(affirming a state court ruling that use of the term “executioner” was defamatory
when made in reference to a person who had been tried and acquitted of homicide
while driving under the influence of alcohol); see also Aguilera Jiménez v. Spain,
App. Nos. 28389/06, 28955/06, 28957/06, 28959/06, 28961/06, & 28964/06 (Eur.
Ct. H.R. Dec. 8, 2009) (HUDOC Database), available at http://cmiskp.echr
.coe.int/tkp197/search.asp?skin=hudoc-en (holding that the domestic court was
within its margin of appreciation to sanction various rude statements).
97. App. No. 21279/02 at ¶ 66; cf. Backes v. Luxembourg, App. No. 24261/05,
¶ 49 (Eur. Ct. H.R. July 8, 2008) (HUDOC Database), available at http://cmiskp
.echr.coe.int/tkp197/search.asp?skin=hudoc-en (holding that the applicant could
have contributed to an open discussion on a matter of public interest without
recourse to accusations that the plaintiff was suspected of involvement in
organized crime). Another example, but pre-Chauvy, can be found in
Constantinescu v. Romania, 2000-VIII Eur. Ct. H.R. 43 (concluding that the
defendant could have expressed his opinion and criticism in the context of a public
debate without using an offensive term).
98. App. No. 21279/02 at ¶¶ 10-12.
99. Id.
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HUMAN RIGHTS IN CONFLICT
211
actions.100 The book referred to Mr. Le Pen as the “chief of a gang of
killers” and a “vampire who thrives on the bitterness of his
electorate, but sometimes also on their blood.”101 These excerpts
were reproduced in a newspaper article, which was written in
reaction to the conviction of the authors of the book;102 the
newspaper was subsequently charged and convicted for this
reproduction.103 The ECtHR considered the content of the statements,
among other factors, in reaching the conclusion that the conviction
had not violated Article 10.104 The Court established that, because the
defamatory remarks had a potential impact on the public and because
their reproduction was not necessary to give a full account of the
prior conviction, the applicant had overstepped the limits of
permissible provocation by reproducing them.105 Without taking a
stance on the results of the Court’s reasoning in the instant case, the
above clearly constitutes a good example of the Court having fully
applied the impact criterion. Unfortunately, it is also one of the few
to be found in the Court’s post-Chauvy case law.
The Court also considers the tone of the statement in question—
consistently awarding additional protection to freedom of expression
when the defamatory statement is uttered in an ironic or satirical
manner. Since ironic and satirical statements—like parodies—by
their very nature involve exaggeration and provocation, the Court
views them more leniently.106 The Court does not draw an explicit
100. Id.
101. Id. ¶ 57.
102. Id. ¶ 21.
103. Id. ¶ 22.
104. Id. ¶ 66.
105. Id.
106. See, e.g., Da Silva v. Portugal, App. No. 41665/07, ¶ 29 (Eur. Ct. H.R. Oct.
20, 2009) (HUDOC Database), available at http://cmiskp.echr.coe.int/tkp197
/search.asp?skin=hudoc-en (commenting that satirical commentary plays an
important role in free debate on questions of general interest); Öztürk v. Turkey,
App. No. 17095/03, ¶ 26 (Eur. Ct. H.R. June 9, 2009) (HUDOC Database),
available
at
http://cmiskp.echr.coe.int/tkp197/search.asp?skin=hudoc-en
(referencing the author’s use of irony in his criticism of the plaintiff, and holding
that his article conveyed ideas that contributed to the public debate); Vereinigung
Bildener Künstler v. Austria, App. No. 68354/01, ¶ 33 (Eur. Ct. H.R. Jan. 25,
2007) (HUDOC Database), available at http://cmiskp.echr.coe.int/tkp197/search
.asp?skin=hudoc-en (noting that the painting was satirical and intended to distort
reality and provoke, and therefore interference with such expression must be
“examined with particular care”); Wirtschafts-Trend Zeitschriften-Verlags GmbH
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link between the tone of the statement and the impact on the
reputation of the plaintiff, but this is nonetheless a classic example of
where the impact criterion could be applied to strengthen the Court’s
reasoning. Prohibiting an ironic or satirical statement would deprive
the applicant of his freedom of expression, while allowing it would
arguably have a minor impact on the reputation of the plaintiff, given
the clearly humorous tone of the statement.107
As to the form of the statement, the Court has occasionally taken
into account the fact that the potential damage to the reputation of the
plaintiff will be more limited when the statement is not disseminated
to the public or when it is published through a medium with a rather
limited audience, such as a specialized book, instead of through the
general print media.108 For example, in Raichinov v. Bulgaria, the
Court had to consider the conviction of a public servant for stating
that the deputy Prosecutor-General “is not a clean person” during a
v. Austria (no. 3), App. Nos. 66298/01 & 15653/02, ¶ 39 (Eur. Ct. H.R. Dec. 13,
2005) (HUDOC Database), available at http://cmiskp.echr.coe.int/tkp197/
search.asp?skin=hudoc-en (recalling that a fundamental function of the press is to
impart information on matters of public interest and that, to this end, journalists are
permitted a degree of exaggeration).
107. See Nikowitz v. Austria, App. No. 5266/03, ¶ 25 (Eur. Ct. H.R. Feb. 22,
2007) (HUDOC Database), available at http://cmiskp.echr.coe.int/tkp197/search
.asp?skin=hudoc-en (making reference to the ironic and satirical style of the article
by which the humorous nature of the statement was evident).
108. See, e.g., Frankowicz v. Poland, App. No. 53025/99, ¶ 48 (Eur. Ct. H.R.
Dec. 16, 2008) (HUDOC Database), available at http://cmiskp.echr.coe.int/
tkp197/search.asp?skin=hudoc-en (noting that the statements were made in an
opinion that the patient requested and that was not subsequently published or made
known to a wider audience); Azevedo v. Portugal, App. No. 20620/04, ¶ 32 (Eur.
Ct. H.R. Mar. 27, 2008) (HUDOC Database), available at http://cmiskp.echr
.coe.int/tkp197/search.asp?skin=hudoc-en (finding a violation of Article 10 where
the allegedly defamatory publication was distributed only to members of the
scientific community); Lindon, App. No. 21279/02 at ¶ 47 (HUDOC Database)
(explaining that the statement was published in a novel with a generally narrow
readership, and thus it caused less damage to the complainant’s reputation than if
the statement were published in a medium that appealed to a larger group of
people); Zakharov v. Russia, App. No. 14881/03, ¶ 22 (Eur. Ct. H.R. Oct. 5, 2006)
(HUDOC Database), available at http://cmiskp.echr.coe.int/tkp197/search.asp?
skin=hudoc-en (considering allegedly defamatory statements made in a private
letter); Raichinov v. Bulgaria, App. No. 47579/99, ¶ 48 (Eur. Ct. H.R. Apr. 20,
2006) (HUDOC Database), available at http://cmiskp.echr.coe.int/tkp197/search
.asp?skin=hudoc-en (involving a statement made to members of a meeting behind
closed doors).
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HUMAN RIGHTS IN CONFLICT
213
meeting of the Supreme Judicial Council.109 The Court relied on the
fact that the statement had been made in front of a limited audience,
behind closed doors, and without the presence of the press or any
other publicity.110 In holding that the negative impact on the
reputation of the plaintiff was accordingly limited, the Court found
that the criminal conviction of the applicant violated Article 10.111
The Court has also consistently been more lenient on applicants
uttering a defamatory statement in the context of an oral exchange or
a heated debate, since in these cases the applicant does not have the
benefit of forethought and careful consideration otherwise present in
written statements.112 The Court has also applied the impact criterion
in these situations to determine that the effect on the reputation of the
plaintiff must have been minimal when the oral exchange takes place
outside of the presence of the media.113
In Gavrilovici v. Moldova, a case involving the conviction of a
private individual who was sentenced to five days of detention for
having supposedly called the president of the regional council a
fascist, the Court took into account the particular circumstances in
which the insulting remark had allegedly been uttered.114 The
applicant was accused of making the statement during a heated
exchange immediately after he was told that the regional council
would stop providing financial aid for the medical transportation of
109. App. No. 47579/99 at ¶ 10.
110. See id. ¶ 48 (contrasting this case with another case where two municipal
guards were insulted in the street in front of numerous bystanders).
111. Id. ¶¶ 48, 53.
112. See, e.g., Gavrilovici v. Moldova, App. No. 25464/05, ¶ 58 (Eur. Ct. H.R.
Dec. 15, 2009) (HUDOC Database), available at http://cmiskp.echr.coe.int/tkp197/
search.asp?skin=hudoc-en (concluding that intervention was unnecessary because
the statement was made in response to provocation and in a state of anger); Csanics
v. Hungary, App. No. 12188/06, ¶ 44 (Eur. Ct. H.R. Jan. 20, 2009) (HUDOC
Database), available at http://cmiskp.echr.coe.int/tkp197/search.asp?skin=hudocen (recognizing that statements made in a public debate are often made during a
heated dispute, which warrants a high level of protection under Article 10);
Raichinov, App. No. 47579/99 at ¶ 51 (holding that a criminal conviction in
response to an oral statement is a disproportionate response).
113. Gavrilovici, App. No. 25464/05 at ¶ 59 (noting that the statements during a
council meeting held in camera with no media coverage had minimal effect on the
plaintiff’s reputation, especially because those present were aware of the
preexisting tension between the applicant and the complainant).
114. Id. ¶ 54.
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[26:1
his chronically ill wife and son.115 The Court consequently
established that, even if the disputed remark had indeed been uttered
by the applicant, he was clearly in a state of despair and anger—
circumstances where the effect on the reputation of the plaintiff must
have been minimal because all those present at the council meeting
were aware of the tension and had heard the unspecified provoking
statements made by the plaintiff.116 The Court therefore ruled that the
criminal conviction and detention of the applicant violated Article
10.117
Although the above considerations regarding the form of the
statement appear to indicate that the Court pays careful attention to
the impact criterion, it is worth noting that in its post-Chauvy case
law, the Court only uses this argument in cases where the damage to
the reputation is expected to be limited. It hardly ever uses it in the
opposite sense—to find a greater potential damage to reputation
when statements are made through mass or print media.118
d. Statements of Fact versus Value Judgments
A crucial element in many defamation cases is the question of
proof of the impugned statements. In this respect, the Court
distinguishes two categories of statements. Statements of fact, in
principle, require proof of veracity by the applicant,119 while value
115. Id. ¶ 9.
116. Id. ¶¶ 58-59.
117. See id. ¶ 60-61 (“The Court recalls that imposing criminal sanctions on
someone who exercises the right to freedom of expression can be considered
compatible with Article 10 ‘. . . only in exceptional circumstances, notably where
other fundamental rights have been seriously impaired . . . .’”).
118. Compare Pedersen v. Denmark, App. No. 49017/99, ¶ 79 (Eur. Ct. H.R.
Dec. 17, 2004) (HUDOC Database), available at http://cmiskp.echr.coe.int/tkp197/
search.asp?skin=hudoc-en (acknowledging the relevance of the fact that the
statement was made on national television, which has a wider audience than print
media), with Karhuvaara v. Finland, 2004-X Eur. Ct. H.R. 263, 275 (finding that
even though the statements were made on national television, the resulting greater
potential for harm did not justify a conviction for defamation).
119. However, in certain cases, including very recent ones, the Court merely
requires a factual basis for statements of fact instead of full proof. See, e.g.,
Ieremeiov v. Romania (no. 2), App. No. 4637/02, ¶ 43 (Eur. Ct. H.R. Nov. 24,
2009) (HUDOC Database), available at http://cmiskp.echr.coe.int/tkp197/
search.asp?skin=hudoc-en (concluding that because the applicant had received
information from two known witnesses, there was a factual basis for his
defamatory remarks, and that this factual basis precluded a finding of bad faith
2010]
HUMAN RIGHTS IN CONFLICT
215
judgments or statements of opinion are not capable of being
proven.120 Requiring the delivery of proof of a value judgment
consequently infringes the freedom of opinion itself.121 Nonetheless,
value judgments should be founded on a sufficient factual basis.122
The distinction between statements of fact and value judgments is
relevant for procedural and evidentiary reasons.123 Further, some
elements connected to the standards of proof have a direct bearing on
the conflict between freedom of expression and the right to
reputation.
At the most straightforward level, the complete absence of proof
for a statement of fact or of any factual basis for a value judgment
has often led the Court to find in favor of the right to reputation of
the plaintiff.124 In this context, the Court has ruled that the more
regardless of whether the remarks were properly characterized as value judgments
or statements of fact); Flux v. Moldova (no. 7), App. No. 25367/05, ¶ 40 (Eur. Ct.
H.R.
Nov.
24,
2009)
(HUDOC
Database),
available
at
http://cmiskp.echr.coe.int/tkp197/search.asp?skin=hudoc-en
(protecting
the
media’s reporting of public opinion where statements are not devoid of
foundation); Romanenko v. Russia, App. No. 11751/03, ¶ 47 (Eur. Ct. H.R. Oct. 8,
2009) (HUDOC Database), available at http://cmiskp.echr.coe.int/tkp197/search
.asp?skin=hudoc-en (requiring only a sufficient and reliable factual basis, not proof
of veracity, scaled in proportion to the nature of allegation); Pedersen, App. No.
49017/99 at ¶ 76 (insisting on a showing of sufficient factual basis for the factual
accusation made against a named chief superintendent).
120. E.g., Lingens v. Austria, 103 Eur. Ct. H.R. (ser. A) 14, 28 (1986).
121. See id. (stating that it would be impossible to verify a value judgment, as it
is an opinion, and therefore fundamentally protected by Article 10).
122. See Oberschlick v. Austria (no. 1), 204 Eur. Ct. H.R. (ser. A) 4, 27 (1991)
(noting that the applicant published a true statement of facts before making an
unsubstantiated “value-judgment as to those facts”).
123. See NORMAN J. SINGER & JD SHAMBIE SINGER, 2B SUTHERLAND
STATUTORY CONSTRUCTION § 56A:4(I)(a) (7th ed. 2010) (theorizing that only
statements about the empirical world are meaningful and distinct from value
statements, which are opinions that do not represent the world as it is).
124. See, e.g., Pedersen, App. No. 49017/99 at ¶¶ 84-85, 87 (holding that a taxi
driver’s oral statement to the applicant did not provide a sufficient factual basis for
the subsequent accusation that the chief superintendant had suppressed the driver’s
police report because there was no evidence whatsoever that the driver had actually
filed a report). See generally Falter Zeitschriften GmbH v. Austria (dec.), App. No.
13540/04 (Eur. Ct. H.R. Feb. 8, 2007) (HUDOC Database), available at
http://cmiskp.echr.coe.int/tkp197/search.asp?skin=hudoc-en (exemplifying the
Court’s view that a lack of facts to support an allegation is a decisive factor);
Keller v. Hungary (dec.), App. No. 33352/02 (Eur. Ct. H.R. Apr. 4, 2006)
(HUDOC Database), available at http://cmiskp.echr.coe.int/tkp197/search.asp?
skin=hudoc-en (holding for the plaintiff because the applicant’s statement was
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[26:1
serious an allegation, the more solid the factual basis must be.125
However, the Court has applied the standard of proof for showing
this basis in a flexible manner—even allowing the necessity of a link
between a value judgment and its factual basis to vary from case to
case.126 For example, the need to provide a factual basis is less
stringent where the facts are already known to the public.127
Although the Court has not offered any clarification for this
argument, it might well be based on an assumption that in such cases
the possible impact on the reputation of the plaintiff is more
limited.128
Additionally, the Court considers the distinction between
statements of facts and value judgments, and thus the accompanying
standards of proof, to be less significant in the context of a lively
political debate.129 In these cases, the Court has accorded a wide
factual but unsubstantiated, and he did not offer proof of the statement’s truth);
Abeberry v. France, App. No. 58728/00 (Eur. Ct. H.R. Sept. 21, 2004) (HUDOC
database), available at http://cmiskp.echr.coe.int/tkp197/search.asp?skin=hudoc-en
(recalling that the proportionality of State interference depends on the existence of
a solid factual basis for the offending remark).
125. See Ivanova v. Bulgaria, App. No. 36207/03, ¶ 64 (Eur. Ct. H.R. Feb. 14,
2008) (HUDOC Database), available at http://cmiskp.echr.coe.int/tkp197/search
.asp?skin=hudoc-en (determining that the applicant’s allegation required
substantial justification because it was very serious and was printed in a popular
and widely circulated daily newspaper).
126. See Feldek v. Slovakia, 2001-VIII Eur. Ct. H.R. 91, 109 (finding that the
Court cannot accept as a matter of principle that a value judgment can only be
considered if it is accompanied by the facts on which that judgment was based).
127. Wirtschafts-Trend Zeitschriften-Verlags GmbH v. Austria, App. No.
58547/00, ¶ 35 (Eur. Ct. H.R. Oct. 27, 2005) (HUDOC Database), available at
http://cmiskp.echr.coe.int/tkp197/search.asp?skin=hudoc-en.
128. See, e.g., Verlagsgruppe News GmbH v. Austria, App. No. 76918/01, ¶ 30
(Eur. Ct. H.R. Dec. 14, 2006) (HUDOC Database), available at http://cmiskp.echr
.coe.int/tkp197/search.asp?skin=hudoc-en (noting that the allegations had already
been widely disseminated through another newspaper and the subjects were
political figures open to public scrutiny); Karhuvaara v. Finland, 2004-X Eur. Ct.
H.R. 263, 274-75 (observing that the subject of the allegations had been publicized
in popular political satire, and therefore the identity of the parties were already
well-known prior to these allegations).
129. See Lombardo v. Malta, App. No. 7333/06, ¶ 60 (Eur. Ct. H.R. Apr. 24,
2007) (HUDOC Database), available at http://cmiskp.echr.coe.int/tkp197/search
.asp?skin=hudoc-en (promoting the view that elected officials and journalists
should enjoy broad discretion to criticize during lively political debates, even when
their statements lack a solid factual basis); see also Dyuldin v. Russia, App. No.
25968/02, ¶ 49 (Eur. Ct. H.R. July 31, 2007) (HUDOC Database), available at
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HUMAN RIGHTS IN CONFLICT
217
freedom to criticize, even where statements may lack a clear basis in
facts. This principle was applied, for instance, in Dyuldin v. Russia, a
case involving an open letter jointly written by a trade union leader
and a journalist in which they accused a regional government of
misusing funds and of directing reprisals against the independent
media through violence and censorship.130
One final example is a case—Flux v. Moldova—where the Court
found a violation of Article 10 despite there being unproven
statements of fact. This case involved members of the press who had
been civilly convicted for accusing the Communist Party of having
accepted bribes from “big fuel importers” in the form of meals and a
lavish party.131 While the Court conceded that it had not been proven
whether the importers’ company actually paid for the event, it
concluded that the lengthy passage of time between the event and the
initiation of the defamation proceedings was a bar to the applicant’s
ability to prove the facts.132 The Court also pointed out that any
damage done to the plaintiff’s reputation had “substantially
diminished with the passage of time.”133 This latter point constitutes
a prime example of the Court applying the impact criterion to its
fullest extent.
2. The Core/Periphery Criterion
The core/periphery criterion has the potential of playing an
important role in the Court’s case law on defamation, especially in
light of the ongoing debate at the Court regarding the precise place
for the protection of reputation within Article 8.134 Most Article 8 and
http://cmiskp.echr.coe.int/tkp197/search.asp?skin=hudoc-en
(reiterating
the
holding in Lombardo).
130. See Dyuldin, No. 25968/02 at ¶¶ 9-11 (noting that the letter was a collective
effort by journalists and human rights activists, founded on their first-hand
experience working in the media in Russia).
131. Flux v. Moldova (no. 1), App. No. 28702/03, ¶ 6-7 (Eur. Ct. H.R. Nov. 20,
2007) (HUDOC Database), available at http://cmiskp.echr.coe.int/tkp197/search
.asp?skin=hudoc-en.
132. See id. ¶¶ 31, 35 (considering the applicant’s arguments that it was difficult
and near impossible to prove facts from a newspaper article and the damages
inflicted one year after the events).
133. Id. ¶ 35.
134. See Adam Wagner, Libel Reform Watch, U.K. HUM. RTS. BLOG (June 7,
2010), http://ukhumanrightsblog.com/2010/06/07/libel-reform-watch/ (preserving
a forum dedicated to libel reform in the United Kingdom, and discussing the
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AM. U. INT’L L. REV.
[26:1
Article 10 judgments in which the Court has taken a stance simply
reiterate that a person’s reputation is an element of her private life
protected under Article 8. However, the Court established in Karakó
that the right to reputation only comes into play as an independent
right when an attack on a person’s reputation reaches a certain level
of gravity and causes such a prejudice to the enjoyment of her right
to private life as to undermine her personal integrity.135 While
awaiting the future developments of the Court’s defamation case law,
an argument regarding the status of reputation within Article 8 could
be raised on the basis of the Court’s Article 8 cases on photographs136
and press disclosure of a private person’s HIV-positive status.137 The
Court explicitly states that both those matters touch the core of the
right to respect for private life. Similar statements regarding
reputation in general are absent in the Court’s defamation case law. It
thus seems that reputation in principle does not belong to the core of
Article 8.138
protections of Articles 8 and 10 in the context of publications tending to defame
notable British citizens).
135. See Karakó v. Hungary, App. No. 39311/05, ¶¶ 21, 23 (Eur. Ct. H.R. Apr.
28, 2009) (HUDOC Database), available at http://cmiskp.echr.coe.int/tkp197
/search .asp?skin=hudoc-en (referencing the Von Hannover case and distinguishing
between reputation and personal integrity, holding that "personal integrity rights
falling within the ambit of Article 8 are unrelated to the external evaluation of the
individual, whereas in matters of reputation, that evaluation is decisive: “one may
lose the esteem of society—perhaps rightly so—but not one’s integrity, which
remains inalienable").
136. See, e.g., Von Hannover v. Germany, 2004-VI Eur. Ct. H.R. 47, 72-73
(holding, in what is now considered the leading case on the subject, that publishing
photographs violated Article 8 where those photographs made no contribution to a
debate of general interest, the public had no legitimate interest in the applicant’s
private life, and the applicant had a “legitimate expectation” of privacy); Sciacca v.
Italy, 2005-I Eur. Ct. H.R. 63, 68-69 (finding that publishing a photograph of a
teacher who was charged with serious crimes was a violation of Article 8 because a
person has a privacy right to their image).
137. See, e.g., Armonienė v. Lithuania, App. No. 36919/02, ¶ 42 (Eur. Ct. H.R.
Nov. 25, 2008) (HUDOC Database), available at http://cmiskp.echr.coe.int/
tkp197/search.asp?skin=hudoc-en (holding that disclosing a person’s HIV-positive
status in a publication violates Article 8 because the illness is a purely private
matter); Biriuk v. Lithuania, App. No. 23373/03, ¶ 41 (Eur. Ct. H.R. Nov. 25,
2008) (HUDOC Database), available at http://cmiskp.echr.coe.int/tkp197/search
.asp?skin=hudoc-en (deciding that a publication describing an applicant as HIVpositive and detailing her sexual lifestyle contravened protections in Article 8).
138. The cases involving photographs and disclosure of delicate and confidential
medical information regarding private individuals raise different issues within the
2010]
HUMAN RIGHTS IN CONFLICT
219
Certain expressions, on the other hand, do belong to the core of
Article 10. The Court attaches great importance to particular aspects
of the freedom of expression, including press freedom and political
speech, because of their essential importance in a democratic society.
The Court also accords a wide freedom of expression to particular
categories of people, such as politicians and candidates for elections,
because they represent an electorate and defend the interests of the
voters.139 As a result, the Court assesses restrictions on the freedom
of expression of politicians with the closest scrutiny.140 The Court
has also awarded extended protection to freedom of expression
exercised by union members in the context of labor disputes because
these debates concern the core interests of the employees.141 In the
eyes of the Court, limiting the freedom of expression of union
members and leaders would deprive the union of its purpose.142 The
above lines of reasoning could be seen as an application of the
right to private life than “ordinary” defamation cases do. This justifies why the
rights involved in those cases touch the core of the right to private life, while
reputation in general does not.
139. See, e.g., Lepojić v. Serbia, App. No. 13909/05, ¶ 74 (Eur. Ct. H.R. Nov. 6,
2007) (HUDOC Database), available at http://cmiskp.echr.coe.int/tkp197/search
.asp?skin=hudoc-en (pointing particularly to politicians, political parties, and their
members as deserving of wide discretion, especially during election campaigns);
Lombardo v. Malta, App. No. 7333/06, ¶ 53 (Eur. Ct. H.R. Apr. 24, 2007)
(HUDOC Database), available at http://cmiskp.echr.coe.int/tkp197/search.asp?
skin=hudoc-en (explaining that elected representatives not only represent the
electorate, but also draw attention to public interests); Brasilier v. France, App. No.
71343/01, ¶ 42 (Eur. Ct. H.R. Apr. 11, 2006) (HUDOC Database), available at
http://cmiskp.echr.coe.int/tkp197/search.asp?skin=hudoc-en (highlighting the need
for increased tolerance of critical speech during a contested election as part of its
finding that the domestic court had levied disproportionate penalties on the
applicant and thereby violated Article 10).
140. See Jerusalem v. Austria, 2001-II Eur. Ct. H.R. 75, 82 (asserting that
politicians have broad leeway with regard to the expression of their views). But see
Keller v. Hungary (dec.), App. No. 33352/02 (Eur. Ct. H.R. Apr. 4, 2006)
(HUDOC Database), available at http://cmiskp.echr.coe.int/tkp197/search.asp
?skin=hudoc-en (holding that interference was necessary because the accusation,
despite having been made by a politician, had no factual basis).
141. See Csanics v. Hungary, App. No. 12188/06, ¶¶ 44-45 (Eur. Ct. H.R. Jan.
20, 2009) (HUDOC Database), available at http://cmiskp.echr.coe.int/tkp197/
search.asp?skin=hudoc-en (noting that the tone of labor disputes is often heated—
yet another reason they require a high level of Article 10 protection).
142. Aguilera Jiménez v. Spain, App. Nos. 28389/06, 28955/06, 28957/06,
28959/06, 28961/06, & 28964/06, ¶¶ 32-33 (Eur. Ct. H.R. Dec. 8, 2009) (HUDOC
Database), available at http://cmiskp.echr.coe.int/tkp197/search.asp?skin=hudocen.
220
AM. U. INT’L L. REV.
[26:1
core/periphery criterion, albeit in a one-sided manner, to provide
additional protection to freedom of expression.
3. The Additional Rights Criterion
The additional rights criterion is especially relevant in the
numerous defamation cases involving allegations of criminal
conduct. If the Court applied this paper’s model, the plaintiff’s right
to reputation would be strengthened because it is supported by other
rights, namely the right to be presumed innocent until proven guilty
in court, under ECHR Article 6(2).143 However, the Court has
exhibited an ambiguous approach to the presumption of innocence,
especially in its post-Chauvy case law. Certain cases indicate that the
Court attaches increased importance to this element.144 This is
evident in Alithia Publishing Company v. Cyprus, a case involving a
civil defamation conviction for publication of newspaper articles
alleging that a former Minister of Defense was corrupt.145 In this case
the Court explicitly stated that the right to the presumption of
innocence was relevant to the balancing exercise that the Court must
undertake.146 Here, the Court ruled that there was no Article 10
violation because the applicants had not demonstrated good faith
when they “acted in flagrant disregard of the duties of responsible
journalism . . . [by publishing statements that] undermined the
143. European Convention on Human Rights, supra note 2, art. 6(2) (“Everyone
charged with a criminal offense shall be presumed innocent until proved guilty
according to law.”).
144. See, e.g., Flux v. Moldova (no. 6), App. No. 22824/04, ¶¶ 25, 31 (HUDOC
Database), available at http://cmiskp.echr.coe.int/tkp197/search.asp?skin=hudocen (cautioning that newspapers do not have free reign to recklessly publish
allegations of criminal acts without allowing the accused to counter the claims,
especially where they have not been convicted by a criminal court); Alithia Publ’g
Co. v. Cyprus, App. No. 17550/03, ¶ 63 (Eur. Ct. H.R. May 22, 2008) (HUDOC
Database), available at http://cmiskp.echr.coe.int/tkp197/search.asp?skin=hudocen (indicating that the principle of innocence until proven guilty is relevant to
determining a fair balance of competing interests); Falter Zeitschriften GmbH v.
Austria (dec.), App. No. 13540/04 (Eur. Ct. H.R. Feb. 8, 2007) (HUDOC
Database), available at http://cmiskp.echr.coe.int/tkp197/search.asp?skin=hudocen (acknowledging that even though politicians are subject to wider criticism than
private individuals, they are still granted the same right to be innocent until proven
guilty).
145. App. No. 17550/04 at ¶¶ 8-9.
146. Id. ¶ 63.
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HUMAN RIGHTS IN CONFLICT
221
Convention rights of others.”147 However, the importance of the right
to the presumption of innocence is tempered by other cases in which
the Court has promoted a more careful analysis of the right in order
to prevent abusive restrictions on the freedom of expression.148
Furthermore, the Court has not included an explicit reference to
Article 6(2) in every case involving an allegation of criminal
conduct.149 Taken on the whole, the rationale behind the Court’s
choice to sometimes incorporate the presumption of innocence into
its reasoning and other times leave it unmentioned remains unclear.
4. The General Interest Criterion
In its Article 10 defamation case law, post-Chauvy, the Court has
made extensive use of the general interest criterion to strengthen the
position of one or both rights involved in the conflict.
The relevance of a general interest is evident in every Article 10
case in which the role of the press is a pertinent factor. In such cases,
the applicant’s freedom of expression is strengthened by the general
interest a democratic society has in guaranteeing a free press and an
open debate on matters of public interest.150 In this respect, the Court
has consistently held that the public also has a right to receive such
information.151 The Court has used this argument to limit the margin
147. Id. ¶ 71.
148. See A/S Diena v. Latvia, App. No. 16657/03, ¶ 86 (Eur. Ct. H.R. July 12,
2007) (HUDOC Database), available at http://cmiskp.echr.coe.int/tkp197/search
.asp?skin=hudoc-en (finding a violation of Article 10 despite the applicant’s use of
terms with a heavy criminal connotation, such as “cheat” and “steal”).
149. For cases post-Chauvy in which the connection is not made, see Da Silva v.
Portugal, App. No. 16983/06 (Eur. Ct. H.R. Jan. 19, 2010) (HUDOC Database),
available at http://cmiskp.echr.coe.int/tkp197/search.asp?skin=hudoc-en; Öztürk v.
Turkey, App. No. 17095/03 (Eur. Ct. H.R. June 9, 2009) (HUDOC Database),
available
at
http://cmiskp.echr.coe.int/tkp197/search.asp?skin=hudoc-en;
Cumpănă v. Romania [GC], 2004-XI Eur. Ct. H.R. 69.
150. See Radio France v. France, 2004-II Eur. Ct. H.R. 125, 149 (explaining
that, although the press must stay within certain boundaries, it has a duty to
disseminate information on matters of social concern).
151. E.g., Lingens v. Austria, 103 Eur. Ct. H.R. (ser. A) 14, 26 (1986); Ivanova
v. Bulgaria, App. No. 36207/03, ¶ 58 (Eur. Ct. H.R. Feb. 14, 2008) (HUDOC
Database), available at http://cmiskp.echr.coe.int/tkp197/search.asp?skin=hudocen. The public’s “right” to receive information falls under the general interest
criterion because it involves a “right” that is assigned to the entire population in
abstract terms and is thus more akin to a general interest than to a fundamental or
human right.
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AM. U. INT’L L. REV.
[26:1
of appreciation accorded to the national authorities and to apply strict
scrutiny to restrictions on the freedom of expression exercised by the
press.152 Similar protection has been accorded by the Court to other
persons or entities that do not belong to the press, but nonetheless
perform a similar function, including audiovisual media
companies,153 NGOs,154 authors of books on issues of public
interest,155 and specialists publishing in the press.156
Another crucial factor in the defamation case law of the ECtHR
that is closely linked to the general interest criterion is the
existence—or in some cases absence—of a public interest in the
allegedly defamatory statements. The Court links any public interest
in hearing the statement to the public’s right to receive information
152. See, e.g., Lingens, 103 Eur. Ct. H.R. (ser. A) at 26 (weighing the
requirements for the protection of privacy against the public interest in open
discussion of political issues); Ivanova, App. No. 36207/03 at ¶58 (asserting that
the press’s role as “public watchdog” is “vital” to society).
153. See, e.g., Radio Twist, A.S. v. Slovakia, App. No. 62202/00, ¶¶ 57-58 (Eur.
Ct. H.R. Dec. 19, 2006) (HUDOC Database), available at http://cmiskp.echr
.coe.int/tkp197/search.asp?skin=hudoc-en (advancing the argument that Article 10
protections apply to the broadcast of telephone conversations as well to other kinds
of commentary); Pedersen v. Denmark, App. No. 49017/99, ¶ 71 (Eur. Ct. H.R.
Dec. 17, 2004) (HUDOC Database), available at http://cmiskp.echr.coe.int/
tkp197/search.asp?skin=hudoc-en (applying stringent Article 10 protections to
television programs expressing political speech).
154. See, e.g., Vides Aizsardzības Klubs v. Latvia, App. No. 57829/00, ¶ 42
(Eur. Ct. H.R. May 27, 2004) (HUDOC Database), available at
http://cmiskp.echr.coe.int/tkp197/search.asp?skin=hudoc-en (highlighting the
capacity for nongovernmental organizations to serve as “watchdogs” against
disfunctional local authorities).
155. See, e.g., Azevedo v. Portugal, App. No. 20620/04, ¶ 31 (Eur. Ct. H.R.
Mar. 27, 2008) (HUDOC Database), available at http://cmiskp.echr.coe.int/
tkp197/search.asp?skin=hudoc-en (implying that the public interest nature of the
publication was a dispositive fact); Chauvy v. France, 2004-VI Eur. Ct. H.R. 211,
212 (applying the case law-created principles of Article 10 to a book on the French
Resistance movement—a subject that holds substantial public interest).
156. See, e.g., Öztürk v. Turkey, App. No. 17095/03, ¶ 27 (Eur. Ct. H.R. June 9,
2009) (HUDOC Database), available at http://cmiskp.echr.coe.int/tkp197/search
.asp?skin=hudoc-en (noting that even though the applicant is not a journalist, the
applicant was still fully protected under Article 10 because of his prominent role in
the magazine article); Riolo v. Italy, App. No. 42211/07, ¶ 63 (Eur. Ct. H.R. July
17, 2008) (HUDOC Database), available at http://cmiskp.echr.coe.int/tkp197/
search.asp?skin=hudoc-en (according expansive protections—the same as those
usually granted to a journalist—to a political science researcher because he had
published an article on a subject of public interest).
2010]
HUMAN RIGHTS IN CONFLICT
223
on matters of general interest.157 Where the statements are made in
the context of a public debate, the Court provides additional
protection by stating that there is limited scope for restriction of such
speech.158 An examination of the defamation case law under Article
10 shows that the Court has applied this principle liberally, finding
the presence of a public interest very easily and, in some cases,
upholding the public’s right to be informed even in the absence of a
matter of general interest.159 This occurred in Karhuvaara v. Finland,
a case where members of the press were convicted for tangentially
mentioning the name of a politician in an article focused on a
criminal proceeding against her husband.160 In this case, the Court
established that the publication did not pertain to a matter of great
157. See, e.g., Romanenko v. Russia, App. No. 11751/03, ¶ 42 (Eur. Ct. H.R.
Oct. 8, 2009) (HUDOC Database), available at http://cmiskp.echr.coe.int/
tkp197/search.asp?skin=hudoc-en (explaining that the matter was of public
concern, and therefore, allegations about the official’s public life were protected
under Article 10); Standard Verlags GmbH v. Austria, App. No. 19710/02, ¶ 56
(Eur. Ct. H.R. Nov. 2, 2006) (HUDOC Database), available at
http://cmiskp.echr.coe.int/tkp197/search.asp?skin=hudoc-en (holding that a
politician’s protection of his reputation is outweighed by the public’s interest in
obtaining information about his credibility).
158. E.g., Flux v. Moldova (no. 7), App. No. 25367/05, ¶ 39 (Eur. Ct. H.R. Nov.
24, 2009) (HUDOC Database), available at http://cmiskp.echr.coe.int/tkp197/
search.asp?skin=hudoc-en; see, e.g., Krasulya v. Russia, App. No. 12365/03, ¶ 38
(Eur. Ct. H.R. Feb. 22, 2007) (HUDOC Database), available at
http://cmiskp.echr.coe.int/tkp197/search.asp?skin=hudoc-en (reiterating that the
Court requires strong justifications for restricting political speech on issues of
public interest because without them, general freedoms of expression would be
endangered); Thoma v. Luxembourg, 2001-III Eur. Ct. H.R. 73, 87 (cautioning the
Court to take care in validating restrictions on expression so as not to discourage
the press from being involved in issues of interest to the public, especially those
issues already being “widely debated”).
159. See, e.g., Azevedo, App. No. 20620/04 at ¶ 31 (considering the subject of
the applicant’s publication as “rather specialized,” but still within the general
interest); Tǿnsbergs Blad AS v. Norway, App. No. 510/04, ¶ 87 (Eur. Ct. H.R.
Mar. 1, 2007) (HUDOC Database), available at http://cmiskp.echr.coe
.int/tkp197/search.asp?skin=hudoc-en (finding that where a public figure may have
failed to obey laws, even privately and outside of his official duties, the acts may
be of public concern and thus protected under Article 10); Karhuvaara v. Finland,
2004-X Eur. Ct. H.R. 263, 275 (stating that even though the matter may not be of
great public concern, if it involves the lives of politicians and may influence
voting, then it may still fall under the essential right in a democratic society to be
informed).
160. 2004-X Eur. Ct. H.R. at 275.
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public interest—at least with regard to the politician,161 but it
nevertheless held that the public had a right to be informed about
aspects of the private life of politicians.162 The Court connected the
possible effect of the spouse’s potential conviction to citizen’s voting
intentions, and thus found that some degree of public interest was
involved.163 Finally, in several cases the Court has used the above
principles to shift the balance in favor of the freedom of expression
by finding that the domestic courts failed to consider the importance
of free debate when striking a balance between the freedom of
expression and the right to reputation.164
In cases where there is an absence of public interest, but still a
dissemination of information to the public, the Court has used this
absence along with the impact criterion to decide in favor of the right
to reputation.165 The Court has held that a distinction must be made
between cases in which there exists a right of the public to be
informed and those in which the publication merely serves to satisfy
the curiosity of a certain readership.166 The Court applied this
principle in Leempoel v. Belgium, finding that restrictions on the
freedom of expression were justifiable when the publication in
question directly criticized a judge’s character without offering any
161. Id.
162. Id.
163. Id.
164. See, e.g., Romanenko v. Russia, App. No. 11751/03, ¶ 47 (Eur. Ct. H.R.
Oct. 8, 2009) (HUDOC Database), available at http://cmiskp.echr.coe.int/
tkp197/search.asp?skin=hudoc-en (suggesting that regardless of whether they have
a clear factual basis, statements made in the course of a “lively debate” should be
made freely); Malisiewicz-Gasior v. Poland, App. No. 43797/98, ¶ 67 (Eur. Ct.
H.R. Apr. 6, 2006) (HUDOC Database), available at http://cmiskp.echr
.coe.int/tkp197/search.asp?skin=hudoc-en (affirming the “crucial importance” of
free debate and noting that politicians must be more tolerant of criticism).
165. See, e.g., Tammer v. Estonia, 2001-I Eur. Ct. H.R. 267, 281 (finding in
favor of the applicant, a former public official, because the publication referred to
aspects of her private life, and thus did not relate to any issue of public concern);
De Revenga v. Spain (dec.) 2000-XII Eur. Ct. H.R. 525, 531 (restricting
publication of information regarding a love affair, which the Court found to be a
“purely private” matter).
166. See, e.g., Standard Verlags GmbH v. Austria (no. 2), App. No. 21277/05, ¶
52 (Eur. Ct. H.R. June 4, 2009) (HUDOC Database), available at
http://cmiskp.echr.coe.int/tkp197/search.asp?skin=hudoc-en
(distinguishing
information about the health of politicians, which is a possible public concern,
from gossip about the politician’s love life, a private matter).
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225
contribution to a debate on a matter of general interest.167
In other cases, the Court has established that certain statements
amount to gratuitous personal attacks outside the scope of the
freedom of expression.168 In Aguilera Jiménez v. Spain, for example,
the court upheld the dismissal of union members who published a
suggestive drawing of their company’s director and two employees
accompanied by rude statements.169 Despite the fact that the
applicants enjoyed additional protection of their freedom of
expression as union members, the Court held that their rights had not
been violated.170 The Court based its ruling on the offensive nature of
the publication and its impact on the reputation of the two
employees, finding that the personal attacks were not necessary for
the defense of the union’s interests.171
The Court has also used the general interest criterion to introduce
conditions on the exercise of freedom of expression by applicants
who are expected to protect a specific interest. Thus, lawyers are
required to respect their special position as intermediaries between
the courts and the public, which results in their responsibility to act
in a “discrete, honest, and dignified” manner and to contribute to the
proper administration of justice and the maintenance of confidence
therein.172 Judges are likewise expected to honor a “duty of loyalty,
167. App. No. 64772/01, ¶ 77 (Eur. Ct. H.R. Nov. 9, 2006) (HUDOC Database),
available at http://cmiskp.echr.coe.int/tkp197/search.asp?skin=hudoc-en.
168. See, e.g., Aguilera Jiménez v. Spain, App. Nos. 28389/06, 28955/06,
28957/06, 28959/06, 28961/06, & 28964/06, ¶¶ 30, 34 (Eur. Ct. H.R. Dec. 8, 2009)
(HUDOC Database), available at http://cmiskp.echr.coe.int/tkp197/search.asp?
skin=hudoc-en (implying that the Court should apply a lower threshold for
proportionality and necessity in a democratic society when the speech at issue has
no real societal value); Shabanov v. Russia, App. No. 5433/02, ¶¶ 11, 48 (Eur. Ct.
H.R. Dec. 14, 2006) (HUDOC Database), available at http://cmiskp.echr
.coe.int/tkp197/search.asp?skin=hudoc-en (holding that the release of private
medical information about a unit commander, who was also accused of being
responsible for two hundred men falling ill, was an unnecessary attack rather than
part of an issue of public concern).
169. App. No. 28389/06 at ¶ 6.
170. Id. ¶¶ 36-37.
171. Id. ¶¶ 30, 34.
172. Veraart v. The Netherlands, App. No. 10807/04, ¶ 51 (Eur. Ct. H.R. Nov.
30, 2006) (HUDOC Database), available at http://cmiskp.echr.coe.int/tkp197/
search.asp?skin=hudoc-en; see Coutant v. France (dec.), App. No. 17155/03 (Eur.
Ct. H.R. Jan 24, 2008) (HUDOC Database), available at http://cmiskp
.echr.coe.int/tkp197/search.asp?skin=hudoc-en (referencing the “usual restrictions
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reserve, and discretion” owed to their employer—the State.173 The
special nature of the medical profession affects medical practitioners’
freedom of expression in the sense that they possess a high level of
public confidence, which implies a need to preserve solidarity among
members of the profession by supporting each other’s reputations.174
Although the Court has yet to directly link these general interests to
the right to reputation, this evolution would be prudent. The general
interests involved in cases where the applicant relying on her
freedom of expression is a lawyer, judge, or medical practitioner
should strengthen the plaintiff’s right to reputation175 just as the
general interests advanced by politicians and union members justly
expand their freedom of expression.
General interests protected by the plaintiff also have an impact in
the Court’s case law. The Court has made a distinction between
public officials who are engaged in law enforcement, such as
prosecutors and judges, and all other public servants, such as
appointed mayors. The Court gives the former group more protection
against defamatory speech because of their roles as the guarantors of
justice, finding that it may be necessary to protect them against
unfounded destructive attacks in order to promote public confidence
in the judiciary, while the latter group should tolerate more
on conduct of members of the Bar” and the fact that lawyers hold “central
position[s] in the administration of justice” as support for according lawyers
diminished Article 10 protection).
173. See Kudeshkina v. Russia, App. No. 29492/05, ¶ 85 (Eur. Ct. H.R. Feb. 26,
2009) (HUDOC Database), available at http://cmiskp.echr.coe.int/tkp197/
search.asp?skin=hudoc-en (noting that all civil servants are held to a high standard
since their positions require the utmost discretion).
174. See Frankowicz v. Poland, App. No. 53025/99, ¶ 49 (Eur. Ct. H.R. Dec. 16,
2008) (HUDOC Database), available at http://cmiskp.echr.coe.int/tkp197/search
.asp?skin=hudoc-en (analogizing to lawyers, who have duties to their clients just as
doctors have duties to their patients, as part of the Court’s eventual holding that
sanctioning a doctor for giving a disparaging assessment of his patient’s previous
health care violated Article 10).
175. One might also argue that the involvement of a general interest should
limit the freedom of expression of the applicant. However, the wording used in the
above text is preferable, for reasons of principle and clarity. Allowing general
interests to bolster the right to reputation means that an applicant’s freedom of
expression is not diminished in importance. Furthermore, general interests here
play their role in the most logical way—by strengthening the reputation of those
protected by such interests.
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HUMAN RIGHTS IN CONFLICT
227
demanding public scrutiny.176 On the other hand, the Court has also
warned of the possibility of public servants abusing the right to sue
for defamation and the negative impact this could have on free and
open debate on matters of public interest.177 For instance, in Dyuldin
v. Russia, a defamation action had been lodged by dozens of
members of a regional government after the applicants had accused
the regional authority of misuse of funds and reprisals against the
independent media.178 Here, in finding for the applicants, the Court
relied on the legal requirement that the impugned statement refer to a
particular person before it can form the basis of a claim for
defamation.179 Allowing one or more state officials to sue for
defamation whenever criticism is levied against the government
would have an inevitable “chilling effect” on the press in performing
its task as “public watchdog.”180
5. The Purpose Criterion
The research performed in preparation for this article did not
reveal any direct applications of the purpose criterion in the Court’s
Article 10 defamation case law. However, the limit placed on
freedom of expression by the Court in cases involving gratuitous
personal attacks could be interpreted as relating to the purpose
criterion. When members of the press use their powers to publish
articles that have no bearing on a debate of public interest, but only
serve to attack a named individual on a personal level, it could be
176. See Prager v. Austria, 313 Eur. Ct. H.R. (ser. A) 17-18 (1995) (noting that
members of the judiciary, including law enforcement, are afforded a higher level of
protection from public scrutiny than politicians because law enforcement officers
depend on public confidence to successfully serve the public). But see Zakharov v.
Russia, App. No. 14881/03, ¶ 25 (Eur. Ct. H.R. Oct. 5, 2006) (HUDOC Database),
available
at
http://cmiskp.echr.coe.int/tkp197/search.asp?skin=hudoc-en
(remarking that a prosecutor’s ability to handle abusive criticism contributes to the
authority of the judiciary).
177. Öztürk v. Turkey, App. No. 17095/03, ¶ 32 (Eur. Ct. H.R. June 9, 2009)
(HUDOC Database), available at http://cmiskp.echr.coe.int/tkp197/search.asp?
skin=hudoc-en; see Dyuldin v. Russia, App. No. 25968/02, ¶ 43 (Eur. Ct. H.R.
July 31, 2007) (HUDOC Database), available at http://cmiskp.echr.coe.int/tkp197/
search.asp?skin=hudoc-en (expressing concern that the press could be involved in
an endless series of litigation if public officials were able to sue them over every
negative portrayal).
178. Dyuldin, App. No. 25968/02 at ¶¶ 10, 12.
179. Id. ¶ 43.
180. Id.
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argued that they exercise their freedom of expression in a manner not
consistent with their role in a democratic society—to inform the
public on matters of general interest.
6. The Responsibility Criterion
The ECtHR’s legal reasoning in defamation cases has undergone a
noticeable evolution, post-Chauvy, with regard to the duties and
responsibilities referred to in Article 10(2).181 Throughout its case
law, the Court has specified that these duties and responsibilities
require journalists to act in good faith and to provide accurate and
reliable information in accordance with the ethics of journalism.182
Although generally limited to cases involving publications in the
press, the Court has also evaluated the good faith of applicants who
made allegedly defamatory remarks elsewhere.183
In its pre-Chauvy case law, the Court referred only sporadically to
the duties and responsibilities of Article 10(2), finding that they are
liable to take on significance in cases that involve attacking the
reputation of a named individual.184 However, after recognizing
reputation as an element of private life protected under Article 8, the
181. European Convention on Human Rights, supra note 2, art. 10(2) (“The
exercise of these freedoms, since it carries with it duties and responsibilities, may
be subject to such formalities, conditions, restrictions or penalties as are prescribed
by law and are necessary . . . .”).
182. See, e.g., Pedersen v. Denmark, App. No. 49017/99, ¶ 78 (Eur. Ct. H.R.
Dec. 17, 2004) (HUDOC Database), available at http://cmiskp.echr.coe.int/tkp197/
search.asp?skin=hudoc-en (noting that journalists are under an ethical obligation to
provide “reliable and precise” information, especially when a person’s reputation
is being attacked); Bladet Tromsǿ v. Norway [GC], 1999-III Eur. Ct. H.R. 295,
324-25 (discussing the media’s “duties and responsibilities” to verify information
that it publishes, particularly if it is defamatory); cf. Fressoz v. France [GC], 1999I Eur. Ct. H.R. 5, 23-24 (cautioning that even though Article 10 provides
significant protection to journalists, it does not, in principle, allow them to
circumvent criminal laws).
183. See, e.g., Juppala v. Finland, App. No. 18620/03, ¶¶ 42-43 (Eur. Ct. H.R.
Dec. 2, 2008) (HUDOC Database), available at http://cmiskp.echr.coe.int/
tkp197/search.asp?skin=hudoc-en (asserting that a person who tries to protect a
child from abuse should not be concerned with violating defamation laws when he
shares the information he has obtained).
184. McVicar v. The United Kingdom, 2002-III Eur. Ct. H.R. 261, 280; Bladet
Tromsǿ, 1999-III Eur. Ct. H.R. at 324-25; see Fressoz, 1999-I Eur. Ct. H.R. at 2122 (indicating that the “duties and responsibilities” of journalists depend on the
situation but that information disclosed about a private individual must always
relate to a matter of public concern).
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HUMAN RIGHTS IN CONFLICT
229
Court has relied on these duties and responsibilities in a more
systematic manner.185 In applying the requirement of good faith to
concrete cases, the Court has linked it to the standards of proof
required for statements of fact and/or value judgments.186 The Court
has thus in several post-Chauvy cases found a failure to exhibit good
faith when an applicant either had not attempted to verify the
reliability of her sources or was not able to substantiate her
defamatory statements by providing proof or at least a sufficient
factual basis.187 This was the deciding factor in Europapress Holding
D.O.O. v. Croatia, in which the applicant could not substantiate her
factual accusation, made in a newspaper article, that a certain
Minister had threatened to kill a journalist while pointing a gun at
her.188 Here, the Court settled the conflict between freedom of
expression and the right to reputation in favor of the latter because
the applicant had not upheld her duties and responsibilities in
185. See, e.g., Pedersen, App. No. 49017/99 at ¶ 78 (surmising that special
grounds are required before the media can be relieved of their ordinary obligation
to verify factual statements that defame private individuals); Busuioc v. Moldova,
App. No. 61513/00, ¶ 59 (Eur. Ct. H.R. Dec. 21, 2004) (HUDOC Database),
available at http://cmiskp.echr.coe.int/tkp197/search.asp?skin=hudoc-en (obliging
journalists to act in good faith to provide accurate and reliable information in
accordance with the ethics of journalism).
186. See, e.g., Kwiecień v. Poland, App. No. 51744/99, ¶ 54 (Eur. Ct. H.R. Jan.
9, 2007) (HUDOC Database), available at http://cmiskp.echr.coe.int/tkp197/
search.asp?skin=hudoc-en (finding that, though the lower court found that none of
the statements had a sufficient factual basis, the applicant was nonetheless acting
in good faith and participating in a public debate); Radio Twist, A.S. v. Slovakia,
App. No. 62202/00, ¶ 63 (Eur. Ct. H.R. Dec. 19, 2006) (HUDOC Database),
available at http://cmiskp.echr.coe.int/tkp197/search.asp?skin=hudoc-en (basing
the Court’s judgment in part on the fact that the journalists were not acting in bad
faith in their report).
187. See, e.g., Europapress Holding D.O.O. v. Croatia, App. No. 25333/06, ¶¶
66-68 (Eur. Ct. H.R. Oct. 22, 2009) (HUDOC Database), available at
http://cmiskp.echr.coe.int/tkp197/search.asp?skin=hudoc-en (reiterating that “the
more serious the allegation is, the more solid the factual basis should be”);
Mahmudov v. Azerbaijan, App. No. 35877/04, ¶ 44 (Eur. Ct. H.R. Dec. 18, 2008)
(HUDOC Database), available at http://cmiskp.echr.coe.int/tkp197/search.asp?
skin=hudoc-en (demonstrating that it was not sufficient for the applicant to claim
that his assertions were “generally known fact[s] which did not require proof”);
Alithia Publ’g Co. v. Cyprus, App. No. 17550/03, ¶ 67 (Eur. Ct. H.R. May 22,
2008) (HUDOC Database), available at http://cmiskp.echr.coe.int/tkp197/
search.asp?skin=hudoc-en (finding that, since the applicants did not practice good
faith, there was no reason to determine whether any special circumstances
ultimately existed to excuse them from verifying the statements).
188. App. No. 25333/06 at ¶¶ 6, 67.
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exercising her freedom of expression.189 However, the Court has also
developed a line of reasoning whereby it considers whether special
grounds exist for discharging the press media’s ordinary obligations
to verify factual statements that defame private individuals.190 The
existence of such special grounds depends on the “nature and degree
of defamation at hand” and the reliability of the sources providing
the information.191 These elements are linked, respectively, to the
impact and the responsibility criteria of the model.
In a limited number of cases, the Court has relied on this line of
“special grounds” reasoning to find that the applicant had acted in
good faith despite the absence of sufficient evidence for a statement
of fact or value judgment on an issue of public interest.192 For
example, in Flux v. Moldova (no. 7), the Court established that the
applicant had acted in good faith, despite there being insufficient
evidence to support the allegation, published in a news article, that
members of the Communist Party had been granted free housing in a
189. Id. ¶¶ 66-71. Compare Flux v. Moldova (no. 1), App. No. 28702/03, ¶¶ 29,
31 (Eur. Ct. H.R. Nov. 20, 2007) (HUDOC Database), available at
http://cmiskp.echr.coe.int/tkp197/search.asp?skin=hudoc-en (finding no Article 10
violation even though the journalists were unable to prove the truth of their
statements), with Alithia Publ’g Co., App. No. 17550/04 at ¶ 71 (determining that
interference with Article 10 rights was justified because applicants lacked good
faith and acted in “flagrant disregard of the duties of responsible journalism”).
190. See Pedersen, App. No. 49017/99 at ¶ 78 (noting that this exception will
apply only in a narrow set of circumstances); Bladet Tromsǿ v. Norway [GC],
1999-III Eur. Ct. H.R. 295, 325 (specifying that the presence of such grounds
should be determined “in light of the situation as it presented itself to [the
applicant] at the material time, rather than with the benefit of hindsight”).
191. Bladet Tromsǿ, 1999-III Eur. Ct. H.R. at 325; see Flux (no. 1), App. No.
28702/03 at ¶¶ 28-32 (providing an example of post-Chauvy cases in which an
additional element is added—the manner in which the article in question is
written).
192. See, e.g., Flux v. Moldova (no. 7), App. No. 25367/05, ¶¶ 41-44 (Eur. Ct.
H.R. Nov. 24, 2009) (HUDOC Database), available at http://cmiskp.echr.coe.int/
tkp197/search.asp?skin=hudoc-en (holding that the applicant acted in good faith by
visiting apartments in question to verify information, and that it would be
unreasonable to ask for a more complete investigation given the lack of official
information about the issue); Tǿnsbergs Blad AS v. Norway, App. No. 510/04, ¶¶
96, 101 (Eur. Ct. H.R. Mar. 1, 2007) (HUDOC Database), available at
http://cmiskp.echr.coe.int/tkp197/search.asp?skin=hudoc-en (finding that the
applicant acted in good faith, even though he did not verify his sources, because he
had worked on the issue for an extensive period of time and possessed official
documents regarding the issue).
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HUMAN RIGHTS IN CONFLICT
231
State-owned warehouse building.193 The Court came to this
conclusion after finding that certain underlying facts were
undisputed, thus granting a level of credibility to the allegation, and
that the applicant had conducted adequate research in an attempt to
verify the information and had acted in a professional manner by
stating in the publication that it had not been possible to verify the
truth of the allegation.194
As a result of the above ambiguity and other factors, such as the
absence of a systematic reference to duties and responsibilities in
post-Chauvy cases and the uncertainty of its impact on the reasoning
of the Court, the exact weight of the responsibility criterion in the
post-Chauvy case law remains unclear. However, the Court’s
increased number of references to the duties and responsibilities
inherent in the exercise of freedom of expression indicates a certain
sensitivity for this criterion. The Court would benefit from further
exploring the possibility of its systematic application.
An interesting indication of the potential value of the
responsibility criterion can be found in Times Newspapers Ltd v. The
United Kingdom (nos. 1 and 2).195 In this case, which involved the
archiving of defamatory publications, the Court held that the press
has a strict obligation to act within the principles of responsible
journalism when maintaining news archives.196 The Court supported
this finding by noting that there is limited urgency to publish such
archives.197 However, the Court agreed with the applicants that
defamation victims should move quickly to protect their reputations,
otherwise certain rights of the press would be infringed.198 The Court
accordingly encouraged the imposition of statutes of limitation for
defamation claims, and suggested that the length of the limitation
period should be determined by striking a balance between the need
193. Flux (no. 7), App. No. 25367/05 at ¶¶ 7, 45.
194. Id. ¶ 44.
195. App. Nos. 3002/03 & 23676/03 (Eur. Ct. H.R. Mar. 10, 2009) (HUDOC
Database), available at http://cmiskp.echr.coe.int/tkp197/search.asp?skin=hudocen.
196. Id. ¶ 45.
197. Id.
198. See id. ¶ 46 (explaining that a time limitation is necessary to guarantee that
newspapers are able to adequately defend themselves, since a lengthy delay could
result in the loss of information).
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to protect the freedom of expression and the right to reputation.199
Here the Court combined the responsibility criterion and the
additional rights criterion to advocate for a middle ground, or in
other words, a practical concordance between both rights.
B. THE LEGAL REASONING OF THE COURT UNDER ARTICLE 8 OF
THE ECHR
Article 8 defamation cases come before the the ECtHR when a
plaintiff, whose domestic defamation proceeding has failed, claims a
violation of her right to reputation.200 The Court addressed this
conflict in cases such as Karakó v. Hungary and Gunnarsson v.
Iceland, analyzed above.201
An examination of several other Article 8 cases shows that the
legal reasoning of the Court in those cases is in some respects more
systematic than that employed in its Article 10 case law. First, the
Court begins its Article 8 analysis by explicitly identifying the
conflict between freedom of expression and the right to reputation,
thus paving the way for attention to be paid to both rights.202 Second,
the Court appears to take a more balanced approach to the conflict in
Article 8 cases. While it has also relied heavily on the principles
developed under its Article 10 case law, it has been more aware of
the need to examine the case from the perspective of both rights
involved.203 The Court has thus established that the positive
199. Id. ¶¶ 46, 48.
200. E.g., Karakó v. Hungary, App. No. 39311/05, ¶ 18 (Eur. Ct. H.R. Apr. 28,
2009) (HUDOC Database), available at http://cmiskp.echr.coe.int/tkp197/
search.asp?skin=hudoc-en.
201. See supra notes 43-51 and accompanying text.
202. E.g., A. v. Norway, App. No. 28070/06, ¶ 65 (Eur. Ct. H.R. Apr. 9, 2009)
(HUDOC Database), available at http://cmiskp.echr.coe.int/tkp197/search.asp?
skin=hudoc-en; Petrina v. Romania, App. No. 78060/01 (Eur. Ct. H.R. Oct. 14,
2008) (HUDOC Database), available at http://cmiskp.echr.coe.int/tkp197/
search.asp?skin=hudoc-en; Pfeifer v. Austria, App. No. 12556/03, ¶ 38 (Eur. Ct.
H.R. Nov. 15, 2007) (HUDOC Database), available at http://cmiskp
.echr.coe.int/tkp197/search.asp?skin=hudoc-en; White v. Sweden, App. No.
42435/02, ¶¶ 20-21 (Eur. Ct. H.R. Sept. 19, 2006) (HUDOC Database), available
at http://cmiskp.echr.coe.int/tkp197/search.asp?skin=hudoc-en; see Minelli v.
Switzerland (dec.), App. No. 14991/02, ¶ 21 (Eur. Ct. H.R. June 14, 2005)
(HUDOC Database) available at http://cmiskp.echr.coe.int/tkp197/search.asp?
skin=hudoc-en (referring continuously to the “personality” of the applicant, but not
to their “reputation”).
203. This is entirely logical, since these principles offer useful guidance when
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HUMAN RIGHTS IN CONFLICT
233
obligations of Article 8 may arise where defamatory statements
exceed the limits of acceptable criticism allowed under Article 10.204
Third, in certain Article 8 cases, the Court offers additional insight
into its view on the relationship between freedom of expression and
the right to reputation, thereby offering more transparency in its
reasoning. In Petrina v. Romania, for example, the Court ruled that
statements directly accusing a named individual and completely
devoid of a factual basis cannot benefit from the defense of
exaggeration or provocation.205
Regarding the presumption of innocence in cases involving
allegations of criminal conduct, the Court’s Article 8 case law offers
mixed results, similar to its Article 10 case law. While the Court did
not reference Article 6(2) in Pfeifer v. Austria,206 it did consider the
right to presumption of innocence in White v. Sweden.207 The latter
case arose after newspaper articles ascribed several criminal offenses
to the applicant, including the murder of Prime Minister Olaf
Palme.208 The Court ultimately found no violation of Article 8 on
these facts, deciding instead that the public interest in being informed
outweighed the applicant’s right to reputation.209
While the Court’s reasoning under Article 8 is, in some ways,
more coherent and transparent than its reasoning under Article 10,
the Court still falls prey to some of the same pitfalls in both sets of
case law. Most notably, it continues the one-sided application of the
impact criterion and fails to remedy the problematic issue of
preferential framing. An example of the former can be found in A. v.
Norway, a case in which a newspaper article alleged that, due to his
prior conviction, the applicant was the prime suspect in a murder
determining the importance of freedom of expression in casu.
204. E.g., Petrina, App. No. 78060/01 at ¶ 39; Pfeifer, App. No. 12556/03 at ¶
44.
205. Petrina, App. No. 78060/01 at ¶¶ 44-48 (involving an applicant who had
been unsuccessful in her domestic defamation action against a journalist who
alleged that she had collaborated with Securitate, the Romanian secret service
during the Communist regime).
206. See App. No. 12556/03 at ¶ 44 (focusing exclusively on conflicting rights
found in Article 10).
207. App. No. 42435/02 at ¶ 21 (considering competing rights under both
Articles 6(2) and 10).
208. Id. ¶ 8.
209. Id. ¶ 30.
234
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investigation.210 In this case, the Court found a violation of Article 8
after establishing that the public interest nature of the publication did
not justify the defamatory allegations, considering that the
publication represented a “particularly grievous prejudice to the
applicant’s honour and reputation that was especially harmful to his
moral and psychological integrity and to his private life.”211
Regrettably, the Court here exhibits one of the major shortcomings
of the case law under Article 10; namely, it applies the impact
criterion only from the side of the invoked right—the right to
reputation—without examining the impact on the other right—the
freedom of expression. This one-sided application is a substantial
indication that the Court continues to practice preferential framing in
its defamation case law.
Arguably, the most striking difference between the Article 8 and
Article 10 case law is the distinction between statements of fact and
value judgments. In two Article 8 cases, the Court found a violation
largely based on the lack of proof for the factual allegations.212
However, in both cases the Court also stated that even if it had
considered the statement to be a value judgment, the ruling would
have been the same because there was no sufficient factual basis to
support the claim.213
In Pfeifer v. Austria, a case involving articles in a weekly
publication, there was an allegation that a journalist’s harsh criticism
of a professor had unleashed a witch hunt against him, which
eventually caused his suicide.214 Here, the Court held that the
210. App. No. 28070/06, ¶¶ 13-17 (Eur. Ct. H.R. Apr. 9, 2009) (HUDOC
Database), available at http://cmiskp.echr.coe.int/tkp197/search.asp?skin=hudocen (quoting the defamatory information published in the newspaper, which linked
the applicant to two murders and discussed the manner in which the police had
interrogated him).
211. Id. ¶¶ 71,73 (revealing that the journalists followed the applicant on his
way home and to his work place to obtain photographs and comments, thereby
affecting his right to private life).
212. Petrina v. Romania, App. No. 78060/01, ¶¶ 47-48, 50 (Eur. Ct. H.R. Oct.
14, 2008) (HUDOC Database), available at http://cmiskp.echr.coe.int/tkp197/
search.asp?skin=hudoc-en; Pfeifer v. Austria, App. No. 12556/03, ¶ 46-48 (Eur.
Ct.
H.R.
Nov.
15,
2007)
(HUDOC
Database),
available
at
http://cmiskp.echr.coe.int/tkp197/search.asp?skin=hudoc-en.
213. Petrina, App. No. 78060/01 at ¶ 50; Pfeifer, App. No. 12556/03 at ¶ 48.
214. See App. No. 12556/03 at ¶¶ 7-11 (chronicling a series of articles published
in response to one another, starting with the professor’s publication, which was
2010]
HUMAN RIGHTS IN CONFLICT
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domestic court’s failure to provide relief to the applicant violated his
right to reputation under Article 8.215 The accusation that the
journalist was morally responsible for the professor’s death severely
maligned his reputation and lacked a sufficient factual basis.216
Therefore, the defendant’s freedom of expression did not outweigh
the applicant’s right to reputation.217 In light of the Court’s tendency,
in an Article 10 analysis, to determine the status of the statement
independently and to take a lenient attitude toward the requirement
of a factual basis, it can seriously be doubted whether the result
would have been the same if the case had been brought under Article
10. This further indicates that a problem of preferential framing
indeed exists in the Court’s defamation case law.218
CONCLUSION
The European Court of Human Rights recognized the existence of
a conflict between the right to freedom of expression and the right to
reputation in defamation cases in Chauvy v. France.219 Yet, the effect
of this recognition on the legal reasoning of the Court under Article
10 has been minimal. While the legal reasoning of the Court under
Article 8 appears, to a certain extent, to be more systematic, there
remains a lack of consistency and transparency in the Court’s
reasoning under both Articles. The main problem is preferential
framing, primarily caused by what can be referred to as the one-sided
application of the impact criterion.
There are strong indications that the Court’s ruling in a given case
indeed depends on which Article is invoked by the applicant.
However, the research has also discerned interesting lines of
reasoning in the Court’s case law, which are closely connected to the
elements of the model presented in this paper. A more widespread
adherence to these lines of reasoning and to the model would assist
criticized by the applicant for including Nazi terminology and disseminating ideas
typical of Nazi ideology).
215. Id. ¶ 49.
216. See id. ¶¶ 44-49 (holding first that the statement was a baseless factual
accusation, but also noting that even if the statement was considered a “value
judgment,” it still lacked a sufficient factual basis).
217. Id. ¶ 49.
218. E.g., id. ¶ 11 (Schäffer, J., dissenting).
219. 2004-VI Eur. Ct. H.R. 211.
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the Court in developing a more consistent and transparent resolution
to the conflict between freedom of expression and the right to
reputation.
Considered on the whole, the Court’s defamation case law clearly
supports a Praktische Konkordanz solution to the conflict between
freedom of expression and the right to reputation—where neither
right is granted absolute preference. The Court advocates finding a
middle ground between both rights because the freedom of
expression does not confer an unlimited right to make statements that
affect another’s reputation, and because the right to reputation does
not warrant a complete protection against all critical statements. In
this respect, an important conclusion to be drawn from the research is
that the criteria of the model, while designed to determine which
right should take preference in the event of a conflict, can also assist
in finding a practical concordance between the freedom of
expression and the right to reputation in abstracto.